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Judge John Roberts Confirmation Hearing

Aired September 12, 2005 - 11:58   ET


WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer and you're in THE SITUATION ROOM, where news and information arrive in one place simultaneously. Happening now, our special coverage of two major stories, the John Roberts confirmation hearings about to get under way and the aftermath of Hurricane Katrina. It's almost noon here in Washington, where history is about to be made, and America's top judicial post is on the line. We are just moments away from opening statements by U.S. senators and the chief justice nominee John Roberts. We'll bring you the key moments. That's coming up live.
The leadership of the U.S. Supreme Court is in transition for the first time in almost two decades. How might Roberts change the court and the nation? Our correspondents and analysts will help us better understand what Roberts does not and does reveal.

And the president on the ground in New Orleans. Getting his first up-close look at the devastation directly in that city.

It's 11:00 a.m. Central Time along the Gulf Coast, and we'll keep you up to the minute on all new developments in the disaster zone.


Welcome to our special coverage. In the Senate hearing room this hour, the stakes incredibly high, and not only for John Roberts. The next chief justice of the United States will help shape the law and the life in this country for many years to come.

Let's go into that room right now. The chairman, Arlen Specter, about to gavel the session into order.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: ... begin the opening statements, which will be 10 minutes in length by each senator.

At the conclusion of the opening statements, we will then turn to the introductions by Judge Lugar, Judge Warner -- actually, Senator Lugar, Senator Warner and Senator Bayh, and then the administration of the oath to Judge Roberts and his opening statement.

So, Judge Roberts, if you would at this time introduce your family we would appreciate it.

ROBERTS: (OFF-MIKE) Peggy Roberts and Barbara Burke. Barbara's husband Tim Burke is also here. My uncle, Richard Podrasky (ph). Representing the cousins, my cousin, Jeannie Podrasky (ph).

My wife, Jane is right here, front and center, with our daughter, Josephine and our son, Jack. You'll see she has a very tight grasp on Jack.


SPECTER: Thank you very much, Judge Roberts.

Judge Roberts had expressed his appreciation to have the introductions early. He said the maximum time of the children's staying power was five minutes. And that is certainly understandable.

Thank you for doing that, Judge Roberts.

And now before beginning the opening statements, let me yield to my distinguished ranking member, Senator Leahy.

LEAHY: Well, Mr. Chairman, I want to thank you for all the consultations. I think we have had each other's home phones on speed dial, we've talked to each other so often. And I have every confidence our chairman will conduct a fair and thorough hearing. You know, less than a quarter of those of us currently serving in the Senate have exercised the Senate's advice-and-consent responsibility in connection with a nomination to be chief justice of the United States. I think only 23 senators have actually been involved in that.

We're fortunate a veteran of these proceedings is chairing this.

We're at a time of great stress in our nation because of what has happened in New Orleans, throughout much of the Gulf Coast regions. I think the hearts and prayers of certainly my state of Vermont, but all Americans, are for those people. And I would hope that they understand while we're having these hearings, they're first and foremost in our thoughts and prayers.

And I'm sure they are with you, Judge.

This is the only time we're going to find out what he is, and so all the more important that we have a good hearing.

Again, Mr. Chairman, I appreciate our meetings on this. Appreciate the meeting earlier this morning with you and Judge Roberts. I think that you have set exactly the perfect tone for a hearing of this nature.

SPECTER: Thank you very much, Senator Leahy.

And now we'll begin the opening statements, as I said, of 10 minutes' duration.

This hearing, Judge Roberts, is being held in the Senate Caucus Room, which has been the site of many historic hearings going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome; 1954, Army McCarthy; 1973, Watergate; 1987, Iran-Contra.

And this chamber still reverberates with the testimony of Judge Bork in 1987 and it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991. This is a very unique hearing, the first one in 11 years in the Senate for a Supreme Court justice, and the first one in 19 years for a chief justice.

And you would be, if confirmed, the 17th chief justice in the history of the country and the second youngest since Chief Justice Marshall was sworn in in 1800.

Your prospective stewardship of the court, which could last until the year 2040 or longer -- the senior justice now is Justice Stevens, who is 85, and, projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court with the hallmark of the court being 5-4 decisions: a 5-4 decision this year allowing Texas to display the 10 Commandments; a 5-4 decision, turning Kentucky down from displaying the 10 Commandments; a 5-4 decision four years ago striking down a section of the Americans with Disabilities Act; and last year a 5-4 decision upholding the Americans for Disabilities Act on the same congressional record.

Beyond your potential voice for change and consensus, your vote will be critical on many, many key issues, such as congressional power, presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future and perhaps institutional changes in the court looking for the day when the court may be televised.

This hearing comes at a time of turbulent partisanship in the United States Senate -- turbulent partisanship. Earlier this year, the Senate faced the possibility of a virtual meltdown with filibusters on one side of the aisle and on the other side of the aisle the threat of the constitutional or nuclear confrontation.

This committee, with the leadership of Senator Leahy, has moved to a bipartisan approach. We had a prompt confirmation of the attorney general. We reported out bills which have become legislation after being stalled for many years on bankruptcy reform and class action. We have confirmed contentious circuit court nominees. We have reported out unanimously the Patriot Act, and after very deliberate and complex hearings reported out asbestos reform. So it has been quite a period for this committee.

And now we face the biggest challenge of the year, perhaps the biggest challenge of the decade, in this confirmation proceeding. I have reserved my own judgment on your nomination until the hearings are concluded, and it is my firm view that there are ought not to be a political tilt to the confirmation of a Supreme Court justice, thought to be Republican or Democrat. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing.

These hearings, in my judgment, ought to be in substantive fact and in perception for all Americans, that all Americans can feel confident that the committee and the full Senate has done its job. There are no firmly established rules for questions and answers. I have expressed my personal view that it is not appropriate to ask a question about how the nominee would vote on a specific case. And I take that position because of the key importance of independence, that there ought not to be commitments or promises made by a nominee to secure confirmation.

But senators have the right to ask whatever question they choose. And you, Judge Roberts, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit.

It has been my judgment, after participating in nine -- this will be the tenth for me, personally -- that nominees answer about as many questions as they think they have to in order to be confirmed.

It's a subtle minuet. And it will be always a matter of great interest as to how we proceed.

I do not intend to ask you whether you will overrule Roe v. Wade. I will ask you whether you think the Constitution has a right of privacy. And I will ask questions about precedents, as they bear on Roe v. Wade.

I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority.

When the Supreme Court of the United States struck down a portion of the legislation to protect women against violence, the court did so because of our, quote, "method of reasoning," close quote. And the dissent noted that that had carried the implication -- the implication of judicial competence. And the inverse of that is congressional incompetence.

And after 25 years in this body and on fact-finding, and there was an extensive record made in the case in the legislation to protect women against violence, the court simply disregarded that.

And then the issue of states' rights, the Supreme Court of the United States has elevated states' rights but in a context that it's impossible to figure out what the law is.

The Americans with Disabilities Act had a very extensive record. But when the case came up in 2001, Garrett, a woman who had breast cancer, the Supreme Court said that the section of the act was unconstitutional.

Four years later in Lane v. Tennessee, you had a paraplegic crawling up the steps, access to a courtroom. The court said that that was constitutional. Again, 5-4 on what really turned out to be on inexplicable decisions.

You have a very extensive paper trail and there will obviously be questions on that subject, and we'll be concerned about what your views are today contrasted with what your views may have been in the future. Phyllis Schlafly, the president of the Eagles Forum, said that they were smart-alec comments by a bachelor who didn't have a whole lot of experience so she's putting on an understandable gloss on that subject. But I know that will be a matter of considerable interest.

In one of your early memoranda, you came forward with an intriguing thought, one of many in those early memorandas as your conceptualization power was evident that justices ought to be limited to a 15-year term. And with that idea in play, if time permits, it's something I'd like to explore: voluntary action on the part of a justice, or perhaps the president can make that a condition.

Between now and the year 2040, or in the intervening years, technology will present many, many novel issues. And there again, if time permits, I'd like to explore that.

I'm down to ten seconds and I intend to stop precisely on time and this committee has a record for maintaining that time. That's it.

ROBERTS: Thank you, Mr. Chairman.

SPECTER: I now yield to my distinguished colleague, Senator Leahy.

LEAHY: Well, thank you, Mr. Chairman. Again, thank you for the way you conducted this whole run-up to this hearing.

A few days ago, William Rehnquist passed away. He'd had 33 years of service on the Supreme Court. And last week many of us paid our respects for his service at the monumental building across the street in which he devoted himself to defending the independence of the federal judiciary.

I know, Judge Roberts, that was a particularly difficult time for you because of your close relationship with him. I thought of the facade of that court, with its marble from Vermont, and I think of how much our state served as a refuge for the chief justice, especially in the summer months.

Today, the devastation, despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government, why it's critical that our government be responsive.

We need the federal government for our protection and security, to cast a lifeline to those in distress, to mobilize better resources beyond the ability of any state and local government -- all of this for the common good.

The full dimensions of the disaster are not yet known. Bodies of loved ones need to be recovered. Families need to be reunited. The survivors need to be assisted. Long-term health risks and environmental damage have to be assessed.

But if anyone needed a reminder of the need and role of a government, the last two days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it.

And if anyone needed a reminder of the racial divide that remains in our nation, no one can now doubt we still have miles to go.

I believe that the American people still want and expect and demand the government to help ensure justice and equal opportunity for all and especially for those who, through no fault of their own, were born into poverty.

The American people deserve a government as good as they are, with a heart as big as theirs. We are all Americans and all Americans should have the opportunity to earn a fair share of the bounty and blessings that America has.

And, Judge, we've been given a great Constitution.

As you know as well as anybody here, it begins, "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain establish this Constitution for the United States of America."

It's a framework for our government, the foundation of all our rights and liberties.

In fact, Vermont joined the union the same year the Bill of Rights was ratified. Those of us from the Green Mountain State, the nation's 14th state, we've historically been very protective of our fundamental rights and liberties.

Many feel we didn't join the union until we were sure the Bill of Rights is going to go through. We understand the importance of the Constitution and the Bill of Rights.

In these hearings, we're going to be discussing constitutional issues that may seem legalistic, but they're vital issues. They affect every one of us every day.

When we discuss the Constitution's commerce clause or spending power, for example, we're asking about congressional authority to pass laws to ensure clean air and water and children's and seniors' health, and safe good, drugs, safe workplaces, even wetland protection, levees that should protect our communities from natural disasters.

Our constitutional values remain constant. We want to realize the American promise of fairness and equality and justice. Constitution: "We the people."

When the Constitution was written, though, "We the people" did not include Native Americans, or African-American slaves, but only free people.

It took more than fourscore years and a civil war before the Constitution was amended to include all citizens, all persons born and naturalized in the United States. Even then, half of the people didn't have one of democracy's defining rights: Women were not yet guaranteed the right to vote. That didn't happen until 1920.

And decades later, still it took a historic ruling, a unanimous ruling by the United States Supreme Court in the case of Brown v. Board of Education, and then landmark legislation by the federal government, for America to begin to provide a measure of equality to many who were held back for so long because, and only because, of the color of their skin.

I've long been a proponent of First Amendment freedoms and open government, because the public's right to know what our government is doing promotes accountability.

Federal judges aren't elected, they serve for life if they're confirmed. The people never have the opportunity for effective oversight of their work.

The judiciary is the most isolated branch of our government from public accountability, so this is the only opportunity to examine what kind of justice John Roberts will dispense if promoted to the Supreme Court, the direction he'd lead the federal judiciary.

This hearing is the only chance that we, the people, have to hear from and reflect on the suitability of the nominee to be a final arbiter of the meaning of the Constitution.

An open and honest public conversation with a nominee in these hearing rooms is an important part of this process. This hearing is about the fundamental right of all Americans.

And you're the first nominee of the 21st century: If you're confirmed, you serve not just for the remaining three years of the Bush administration, but you could serve through the administrations of the next seven or eight presidents.

Judge Roberts would be deciding matters that affect not only all Americans today, but also our children and our grandchildren.

At one of these hearings nearly 20 years ago, I noted how critical it is for the Senate to engage in a public exploration of the judicial philosophy of Supreme Court nominees. I said, "There can hardly be an issue closer to the heart of the Senate's role than a full and public exposition of the nominee's approach to the Constitution and to the role of the courts in discerning and enforcing its command."

That's what I mean by judicial philosophy. The truth has not changed.

What's more difficult to see, though, is the arc of the law in the years ahead as justices will vote on which cases to accept and then how to decide them.

Ours is a government of laws. When we are faced with a vacancy on the Supreme Court, we're reminded that it's our fellow citizens, nine out of our 280 million Americans, who interpret and apply those laws. The balance and the direction of the Supreme Court now at issue with two vacancies, both Chief Justice Rehnquist and Justice Sandra Day O'Connor. Chief among emerging concerns are whether the Supreme Court will continue its recent effort to restrict the authority of Congress to pass legislation to protect the people's interests in the environment, in safety, in civil rights, and whether the Supreme Court will effectively check the greatly enhanced presidential power that's been amassed in the last few years.

In other words, Judge, whether you will be the protector of the rights of all Americans -- not just Republicans, not just Democrats, not just independents, but all Americans -- and whether you can serve as the check and balance that all Americans expect.

Now, the light of the nominations process is intense. It's intense because it's the only time that light's going to shine. But the afterglow lasts for the rest of a justice's career.

We the people have just this one chance to inquire whether this person should be entrusted with the privilege and the responsibility of interpreting our Constitution and dispensing justice from the nation's highest court.

Two hundred and eighty million Americans -- the president's made his choice. Now there's only 100 Americans standing in the shoes of all other Americans. And on behalf of the American people, it's the job of the 100 of us in the Senate to do all we can to make sure we get it right.

Mr. Chairman, there's time left over, but I've said all I intend to say.

SPECTER: Thank you very much, Senator Leahy, for your statement. Thank you for your leadership, and your leadership on observing the time so meticulously.

Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

I want to begin by saying that my thoughts and prayers are with the family of Chief Justice William Rehnquist. He concluded his life on Earth just the way he lived it: independently and with dignity.

And I'm glad that his family was with him when he passed away. He was a good man and a great judge.

Judge Roberts, I know that you and Chief Justice Rehnquist remained close friends. He would have been proud to have a former clerk serve with him as a colleague on the court. And now you've been nominated to succeed him as chief justice.

When President Bush nominated you two years ago to your current post on the U.S. Court of Appeals, you had two hearings before this committee and additionally answered approximately 100 written questions from various senators. The American Bar Association twice unanimously gave you its highest, well-qualified, rating.

That process covered a lot of ground, including many of the same issues which are sure to be raised here. You acquitted yourself so well that the Senate confirmed you without dissent.

Do not be surprised now, however, if it seems like none of that scrutiny and evaluation had ever happened.

Let me mention one example relating to my home state of Utah to show how the confirmation process has changed.

President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5, 1922. That same day, the Judiciary Committee chairman went straight to the Senate floor and, after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads.

The judicial selection process, of course, has changed because what some political forces want judges to do has changed from what America's founders established.

America's founders believed that separating the branches of government, with the legislatures making the law and the judiciary interpreting and applying the law, is the linchpin of limited government and liberty. James Madison said that no political truth has greater intrinsic value.

Quoting the philosopher Montesquieu, Alexander Hamilton wrote in the Federalist, number 78, that, quote, "There is no liberty if the power of judging be not separated from the legislative and executive powers," unquote.

Well, times have changed. Today, some see the separation of powers not as a condition for liberty but as an obstacle to their own political agenda.

When they lose in the legislature, they want the judiciary to give them another bite at the political apple. Politicizing the judiciary leads to politicizing judicial selection.

The confirmation process has sometimes been -- it seems to me -- unbecoming of the Senate and disrespectful of nominees. I applaud President Bush for resisting this trend and for nominating qualified men and women who, as judges, will not legislate from the bench.

You're a perfect example of that.

The conviction that judges interpret and apply but do not make the law helps us sort out the information we need, the questions we ask, the standards we apply and the decisions we make.

With that in mind, I believe that there are three facts that should guide us in this hearing. First, what judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the canons of judicial ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them.

I'll be the first to admit that senators want answers to a great many questions. But I also have to admit that a senator's desire to know something is not the only consideration on the table.

Some have said the nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment. These might be catchy sound bytes, but they are patently false.

That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to senators and protect their impartiality and independence.

Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues.

Some senators consult with law professors to ask these questions a dozen different ways. But we all know that is what they seek.

In 1993, President Clinton's Supreme Court nominee, Judge Ruth Bader Ginsburg, explained better than I can why nominees cannot answer such questions no matter how they're framed.

She said, quote, "A judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process," unquote.

Nominees may not be able to answer questions asking them to opine or speculate about hypotheticals outside of an actual case with concrete issues and real facts.

Since 1792, as long as the judiciary itself has existed, the Supreme Court has held that judges do not have the authority to render such advisory opinions.

We should not be surprised, then, when nominees decline to provide what judges themselves may not provide.

So the first fact that should guide us here is that, no matter how badly senators want to know things, judicial nominees are limited in what they may discuss.

That limitation is real. And it comes from the very nature of what judges do. The second fact is that nominees themselves must determine where to draw the line. Judges, not senators, take the oath of judicial office. Judges, not senators, are bound by the canons of judicial ethics. Judge Roberts will be a federal judge for many years to come. This process will only determine which courtroom he will occupy.

He must determine how best to honor his judicial obligations.

Different nominees may draw this line a little differently, but they draw the same kind of line protecting their judicial impartiality and independence.

Justice Stephen Breyer drew that line in 1994. As he put it, clients and lawyers must understand that judges are really open- minded.

Justice Anthony Kennedy drew that line in 1987. He said that the public expects that a judge will be confirmed because of his temperament and character, not his position on the issues.

Recently, one of our colleagues on this committee dismissed as a myth the idea that Justice Ginsburg refused to discuss things related to how she would rule.

Anyone watching C-SPAN's recent replays of Justice Ginsburg's hearing knows that this is not a myth; it is a reality.

I was on this committee in 1993. Justice Ginsburg was not telling mythological tales when she refused nearly 60 times to answer questions, including mine, that she believed would violate what she said was her rule of, quote, "no hints, no forecasts, no previews," unquote. Those were her words, not mine.

Justice Ginsburg did what every Supreme Court nominee has done: She drew the line she believed was necessary to protect her impartiality and independence.

Finally, the third fact that should guide us is that the Senate traditionally has respected the nominee's judgment about where to draw the line. In response to some of my questions, Justice Ginsburg said, quote, "I must draw the line at that point and hope you will respect what I have tried to tell you," unquote.

Did I wish she had drawn the line differently? Of course. But I respected her decision.

This is the historical standard.

In 1967, our colleague, Senator Kennedy, a former chairman of this committee, made the same point at a press conference supporting the Supreme Court nomination of Thurgood Marshall.

Senator Kennedy said, quote, "We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are either before the court or very likely to appear before the court."

This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent. Justice Marshall drew his line, yet we confirmed him by a vote of 69-11.

Justice Sandra Day O'Connor drew her line, yet we confirmed her by a vote of 99-0.

Justice Kennedy drew his line, yet we confirmed him by a vote of 97-0.

Justice Ginsburg drew her line, yet we confirmed her by a vote of 96-3.

Justice Breyer drew his line, yet we confirmed him by a vote of 87-9.

We must use the judicial rather than a political standard to evaluate Judge Roberts' fitness for the Supreme Court. That standard must be based upon the fundamental principle that judges interpret and apply, but do not make the law.

Judge Roberts, as every Supreme Court nominee has done in the past, you must decide how best to honor your commitment to judicial impartiality and independence. You must decide when that obligation is more important than what senators, including this one, might want to know.

As the Senate has done in the past, I believe we should honor your decision and make our own.

Judge Roberts, you have a tremendously complex and important and honorable record, from law school to the various positions in government that you held, to the judge on the U.S. Circuit Court of Appeals for the District of Columbia, to now.

We have a great deal of respect for you. We expect you to make a great justice. And I just want to congratulate you on your nomination.

SPECTER: Thank you. Thank you very much, Senator Hatch.

I know Senator Warner is with us, one of the introducers. And of course he's welcome to stay, but the timing will move to him at about 3:20, approximately.

Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman.

Judge Roberts, I join in welcoming you and your family to this committee and to this famous room, the site of so many historic hearings.

Today our nation's flags are at half mast to honor the memory of Chief Justice Rehnquist and his deep dedication to his beloved Supreme Court. And we know that Judge Roberts was especially close to him. And our thoughts and prayers go to the Rehnquist family and all who knew him.

As we are all aware, the Senate's actions on this nomination is profoundly important. It's a defining opportunity to consider the values that make our nation strong and just and how to implement them more effectively, especially the guiding principle of more than two centuries of our history that we are all created equal.

Our commitment to this founding principle is especially relevant today. Americans are united, as rarely before, in compassion and generosity for our fellow citizens whose lives have been devastated by Hurricane Katrina.

That massive tragedy also taught us another lesson.

The powerful winds and flood waters of Katrina tore away the mask that has hidden from public view the many Americans who are left out and left behind. As one nation under God, we cannot continue to ignore the injustice, the inequality and the gross disparities that exist in our society.

Across the years, we've experienced times of great turmoil and great triumph as each succeeding generation struggled to live up to our founding principle and give it meaning for everyone.

Americans have shed blood, campaigned and marched. They have worked in countless quiet ways as well to see that every one of our citizens is part of our democracy and has an equal opportunity for a good education, a good job and a good life.

Today, grandparents who were denied the right to vote expect their grandsons and granddaughters to be able to cast a ballot without discrimination or intimidation.

And our society is better because of that progress. Today, parents expect their disabled children to live in hope, to receive an education that draws out their talent, enables them to reach for their dreams like all other Americans.

And our society is better because of that progress.

Too many have sacrificed too much, worked too hard, come too far to turn back the clock on that progress. Americans today expect their elected representatives to carry on the great unfinished business of making America the land of opportunity for all. And we expect our courts to defend our progress as their constitutional responsibility.

The challenge today is especially difficult because of the vast global economic changes and major new threats to our national security. We need the ingenuity and innovation and commitment of every American.

Our military leaders are the first to say that highly qualified, racially diverse armed forces are essential to defend our country and the course of freedom at home and abroad.

Every citizen counts. And we must continue to remove barriers that hold back millions of our people. And we must draw strength from our diversity as we compete in a new world of promise and peril.

So the central issue before us in these hearings is whether the Supreme Court will preserve the gains of the past and protect the rights that are indispensable to a modern, more competitive, more equal America. Commitment to equality for all is not only a matter of fairness and conscience; it's also our path to sustained national strength and purpose.

We also are a government of the people in which citizens have a strong voice in the great issues that shape our lives.

Our systems of checks and balances was drawn up in full awareness of the principle that absolute power corrupts absolutely and was designed to make sure that no branch of government becomes so powerful that it can avoid accountability.

The people have a right to know that their government is promoting their interests, not the special interests.

When it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy, the people have a right to keep government from intruding into their private lives and most personal decisions.

But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.

Above all, the people and their Congress must have a voice in decisions that determine the safety of our country and the integrity of our individual rights.

We expect Supreme Court justices to uphold those rights and the rule of times in both war and peace. All this and more will be before the Supreme Court in the years ahead, and its judgments will affect the direction and character of our country for generations to come.

Judge Roberts, you are an intelligent, well-educated and serious man. You have vast legal experience, and you're considered to be one of the finest legal advocates in America.

These qualities are surely important qualifications for a potential Supreme Court justice, but they do not end the inquiry of our responsibility. This committee and the full Senate must also determine whether you have demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.

We have only one chance to get it right and a solemn obligation to do so. If you're confirmed ,you could serve on the court for a generation or more and the decisions you make as a justice will have a direct impact on the lives of our children and our grandchildren and our great-grandchildren.

Because of this special importance of an appointment like yours, the founders called for a shared power between the president and the Senate. The Senate was not intended to be a rubber stamp for a president's nominees to the Supreme Court. And, as George Washington himself found out, it has not been.

Judges are appointed by and with the advice and consent of the Senate. And it is our duty to ask questions on great issues that matter to the American people and speak for them.

Judge Roberts, I hope you will respond fully and candidly to such questions, not just to earn our approval, but to prove to the American people that you have earned the right to a lifetime appointment to the highest court in the land.

Unfortunately, Mr. Chairman, there are real and serious reasons to be deeply concerned about Judge Roberts' records. Many of his past statements and writings raise questions about his commitment to equal opportunity and to the bipartisan remedies we've adopted in the past.

This hearing is John Roberts' job interview with the American people.

He will have a fair chance to express his values, state his views and defend his record.

The burden on him is especially heavy because the administration, at least so far, has chosen not to allow the Senate to have access to his full record. We can only wonder what they don't want us to know.

In particular, we need to know his views on civil rights, voting rights and the right to privacy, especially the removal of existing barriers to full and fair lives for women, minorities and the disabled.

From the start, America was summoned to be a shining city on a hill. But each generation must keep building that city.

Even in this new century, some Americans are still denied a voice at the ballot box because of their color, denied a promotion because of their gender, denied a job because of their age, denied hope because they are gay or denied an appropriate education because they are disabled.

Long-established rights to privacy are under heavy siege. We need a chief justice who believes in the promise of America and the guarantees of our Constitution, a person who will enter that majestic building near here and genuinely believe the four inspiring words inscribed in marble above the entrance: "Equal justice under law."

I look forward to hearing from Judge Roberts about whether, if he joins the Supreme Court, he will uphold the progress we have made and will guarantee that all Americans have their rightful place in the nation's future.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Kennedy.

Senator Grassley?

BLITZER: All right, we're going to continue to monitor this hearing, the chairman going through one by one by one, all the members of the Senate Judiciary Committee, Charles Grassley of Iowa, Republican, about to ask some questions right now.

We'll continue to watch everything that's going to and make sure we don't miss a beat, but let me bring in, into THE SITUATION ROOM, our senior analyst Jeff Greenfield, our senior legal analyst Jeffrey Toobin, and a man who knows this confirmation process very, very well, the former attorney general of the United States John Ashcroft himself, a former United States senator.

Let me start with you Jeff Greenfield.

I think everything pretty much so far is as billed, not a huge surprise in these opening statements.

JEFF GREENFIELD, CNN SR. ANALYST: That's right. What the senators are doing is essentially laying out the terrain that they're going to explore tomorrow when they actually get into the questioning. And you're quite right, Senator Specter has already said that he's very concerned about the court's use of congressional power by striking down three dozen federal laws in the last decade or so. Senator Leahy said, look, this is the only shot we have of you, so don't be surprise said if we ask you tough questions about when where you stand. And Senator Hatch is saying, yes, but remember, you shouldn't be answering a whole lot of questions that will tell us how you might vote. And Ted Kennedy's basic marker is, are you going to be a fair judge, or do your writings, which he pointed to quite specifically, do your writings in the past suggest that you really indifferent to the claims of women, minorities and other people?

So you're right, it's gone pretty much according to plan.

BLITZER: John Ashcroft, this is your first television interview since you left the Justice Department as the attorney general. Let me run a couple of polls by you, because you not only bring some legal expertise, some political expertise as well.

A new CNN/"USA Today"/Gallup poll that has just come out. Should the Senate confirm John Roberts as chief justice? Yes, 58 percent. No, 27 percent. Unsure, 15 percent going into the hearing. And a second question of whether the American public has a favorable or unfavorable opinion of Judge Roberts, 50 percent say they have a favorable opinion of him, 17 percent unfavorable, 33 percent are not sure.

The politics of this, John Ashcroft, could be significant. Certainly barring a bombshell, it looks like he's going to be confirmed.

JOHN ASHCROFT, FMR. ATTY. GEN.: Well, think he definitely will be confirmed, Wolf; 58 percent is a high number in itself, but when you consider it counterpoised against the 27 percent, it's better than a two-to-one margin. Those are kind of landslide statistics, and the approval by Americans saying he's a good person is about a three-to- one level, 50 to 17, I guess the last time I checked, three 17s were 51, and so that's about a three-to one level. So it's pretty clear that the American public has already been a part of a confirmation process as the news industry and others discuss this judge. And I believe he will be confirmed.

I think that's fortunate for the country. From what I've read, he's a person who's had very significant discipline in his life to prepare himself eminently for this job. The Supreme Court bar which is a rather small elite club of lawyers here, be they Republicans or Democrats, have labeled this individual as very well qualified, and so there will be political statements, there will be efforts in the committee to try and shape his performance once he's on the bench by pushing him in one direction or another, but no one has endured the kind of cross-examination that this nominee has, both in his 38 or so appearances before the United States Supreme Court. If you've endured that kind of cross-examination, you know the definition of pressure. I've been there, and I've felt it, or he's been before this committee before. I think it's pretty clear, this is going to be a confirmation hearing, and he'll ultimately be confirmed.

BLITZER: All right, let me bring Jeff Toobin in. Even though it looks like barring a bombshell he's going to be confirmed, I think everyone agrees on that, Jeff, it's not going to be necessarily be a free ride for John Roberts, by any means. He's going to be grilled pretty, pretty strong.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Two issues to keep an eye on, that we will learn a lot more about what he thinks. The first is the right to privacy, which is the provision of judicial opinions, the provision of the law that has included, historically the right to abortion, and there are going to be a lot of questions trying to tease out his view about whether there is any right to privacy protected by the Constitution, and the other is something Senator Specter raised, which is the turf fight that's been going on between the judicial branch of government and legislative branch of government, whether Congress has the right to legislate in all of the areas that it has in the last several decades. Those two areas I think there will be a lot of questions about, and we're going to learn a lot about where he stands. Yes, he's going to be confirm in all likelihood, and by the end of the week, we're going to know a lot more about what kind of justice he will likely be.

BLITZER: All right, stand by, guys, because I want to make sure that our viewers understand what's going on. This is a very historic moment here in the United States. It's been about two decades since a chief justice nominee has been questioned by the members of the Senate Judiciary Committee. Much more coming up ahead here in THE SITUATION ROOM. Our live coverage of the John Roberts confirmation hearings will continue, and we'll also look forward to hearing from the nominee himself. That's coming up after the opening statements by all of the members of this committee.

Plus, we'll also stand by for the latest developments from the hurricane disaster area. President Bush, firsthand on the ground once again in the area. He's in New Orleans today. How much progress does he see? Complete coverage of both of these stories. Stay with us here in THE SITUATION ROOM.


BLITZER: Welcome back. We're watching the confirmation process. It has officially begun, the confirmation process of John Roberts to be the next chief justice of the United States. That's the official title that he will have if confirmed. Not chief justice of the Supreme Court, chief justice of the United States.

Jeff Greenfield, I want to bring you in and talk a little bit about how Hurricane Katrina, in your view, may have impacted on this process. It's today two weeks since that hurricane touched down on the Gulf shore, a dramatic two weeks indeed, for this nation. But what, if any, impact do you see that hurricane having on this Supreme Court confirmation process?

GREENFIELD: Well, actually, Wolf, apart from the fact that it probably takes this to the number two story this week, the other fact is that you can see already how some of the senators, two of the Democrats, have particularly used this to...

BLITZER: All right. Hold on a second, Jeff. I want to bring in Senator Biden. He's making his opening statement. He's one of the top Democrats on the Judiciary Committee. Let's listen in to Senator Joe Biden of Delaware.


SEN. JOSEPH BIDEN (D), JUDICIARY CMTE: ... and Judge, I want to point out to my friends that it is true judges didn't come before the committee in the past...


KYL: Our proper role this week is to determine whether Judge Roberts has the character, the legal ability and the judicial philosophy to fulfill that responsibility.

SEN. ARLEN SPECTER (R-PA), CHAIR, JUDICIARY COMMITTEE: Thank you very much, Senator Kyl. Now Senator Cole.

BLITZER: We're going to break away a little bit from this hearing. The senator from Wisconsin, Herb Cole, is about to make his opening statement. We just heard from Jon Kyl, Republican of Arizona.

Before -- before Joe Biden and John Kyl were making their statements, I had asked our senior analyst, Jeff Greenfield, about the connection, if any, in his mind between what has happened involving Hurricane Katrina these past two weeks and this entire Senate confirmation process.

What is the connection in your mind, because there seems to be a connection at least to many observers, Jeff?

JEFF GREENFIELD, CNN POLITICAL ANALYST: Well, the first one it makes the hearings the No. 2 story instead of the No. 1. But the more significant thing, I think, is the way that at least two of the Democrats, Ted Kennedy and Pat Leahy, have used the Katrina disaster to say, "Look, this proves that, in this country, particularly poor people often get hurt worse by events. And that's why we need a strong federal government. And we need a justice who understands that the Constitution and the Bill of Rights and the various decisions the court had made have been designed to protect the powerless."

And we're probably going to hear that throughout the hearing, at least from the Democrats. I have not heard any Republican make that point.

So as with anything with politicians, an event that dominates the news is sometimes used to make a political point, Wolf.

BLITZER: I know this might be somewhat speculative, but at least there are some who suggest that the president might not necessarily have nominated John Roberts to be the chief justice if Katrina had not occurred.

Given the fact that he was so widely praised over these past few months since he nominated him to replace Sandra Day O'Connor, the question is did he just want to get through this process now with someone who was likely to be confirmed, rather than nominating someone who could be more of a lightning rod?

GREENFIELD: You know, Wolf, that to me -- I have to say in all honesty that is kind of a classic Washington, "Let's take -- let's make something out of nothing." I think what happened was what you heard.

The one thing I think you can say is this has not been a good few months for the president. He's gotten high marks for the appointment of Roberts. It seemed like a natural thing to do to put a young person on the Supreme Court as chief who could reign for 25 years with another justice. But I think that kind of -- that kind of thinking is -- it's above my pay grade I guess, Wolf.

BLITZER: All right, Jeff. Stand by.

I want to bring in Jeff Toobin, our other Jeff. You were listening to some of these opening statements, Jeff, very, very carefully. Specifically, Joe Biden, who is a very influential Democrat.

JEFF TOOBIN, CNN LEGAL ANALYST: And I think he used a phase that really defines the big fight in constitutional law right now. He talked about the way he believes in the Constitution, it reflects the ever-increasing protection of human dignity.

Didn't used to protect women, didn't used to protect black people. Now gay people are starting to get rights, the disabled. And, you know, that is the view of a lot of liberals on the Constitution.

Conservatives say, "Are you kidding me? The Constitution says -- stands for what it stood for in 1787 when it was passed, and the Bill of Rights a few months later," that the Constitution does not change. There is nothing ever increasing about the Constitution.

And I think that debate about what the Constitution means, does it change, does it evolve, that's really what the Supreme Court has been struggling with for a long time. And I think these senators will be reflecting that debate in their comments and in their questions to Judge -- now Judge Roberts and we'll see if we get a signal of which way he believes that debate should go.

BLITZER: John Ashcroft, look at your fellow Republicans so far who have made their opening statements. You see a pattern emerging, because certainly I do, but what about you? You used to be a member of that judiciary committee yourself before you became attorney general of the United States.

JOHN ASHCROFT, FORMER ATTORNEY GENERAL: Well, it's pretty clear that they anticipate that they'll be individuals who will press the nominee for his views regarding issues that will later appear before the court.

There's a danger if the nominee gave too specific an answer that he might have to disqualify himself for having been involved in the issue publicly or otherwise.

And so you take Orrin Hatch, who very carefully and meticulously went through the history of recent nominees to the court and how they had declined, properly so, to answer questions with particularity and with -- that would somehow compromise their ability to be independent later on.

And Orrin Hatch went through both Republican and Democrat nominees and even quoted other members of the committee in this respect. And then Jon Kyl very carefully extended that analysis to include the way in which documents, confidential documents and memoranda need to be protected in order for the Justice Department to be able to call upon staff attorneys to write honest, clear documents about what the understanding of the law is, what the circumstances are, what the cases involve.

And if every time a Justice Department lawyer was writing a memo about a case, he had to think, "Well, this will later be in the press. How do I shade this so I don't somehow say something that wouldn't be -- difficult for me if I were to sometime be nominated as a judge," it would corrupt the process of staff work at the Justice Department.

So you saw Jon Kyl making reference to documents as well as Orrin Hatch making reference to these cases to set the framework for the appropriate limits of a congressional confirmation hearing. Very important framework to be established early.

BLITZER: All right. All right, stand by, guys. I want to just take another quick break. We're going to continue to monitor this hearing. Herb Cole, the senator from Wisconsin, he's making his opening statement right now. We're going to go back to that hearing.

This is an historic day, an historic week here in Washington as these confirmation hearings continue.

There's also been a development in the past few minutes in Baghdad. We'll update you on that plus all the latest developments in the aftermath of Hurricane Katrina. Much more of our special coverage here in THE SITUATION ROOM right after this.


BLITZER: Welcome back. We're watching the confirmation hearings that have begun. They began almost an hour and a half or so ago in the Senate caucus room. Right now Republican Senator Mike Dewine of Ohio is making his opening statement. We'll go back there shortly, but there's other important news that's developing.

Let's check in with CNN's Kyra Phillips over at the CNN Center for that.

Hi, Kyra.

KYRA PHILLIPS, HOST, "CNN LIVE FROM": Hi, Wolf. Thank you very much.

We are going to return, of course, to Wolf Blitzer in THE SITUATION ROOM once the Roberts hearings resume, but first we want to check in on the latest developments in Iraq.

We just got word of a developing story right now out of Baghdad. A huge car bomb exploding outside a popular restaurant in Baghdad's upscale Mansour neighborhood. Happened about 8:30 Baghdad time.

Hospital officials are reporting at least one person is dead, 17 wounded. We're working this story as we speak.

As you know, the last major car bombing in that capital was Thursday, when a black BMW exploded as a convoy carrying U.S. security contractors drove by.

Now we're being told most of the individuals that have been killed in this explosion in this upscale neighborhood have been women. We're working more information. We'll bring it to you as we get it.

Persistence and another presidential visit. It's President Bush's third trip to the region but his first ground level look at New Orleans. More and more of the ground there is re-emerging as the floodwaters drain and are being pumped into Lake Pontchartrain. Mr. Bush says that Congress needs to examine the state of U.S. disaster preparedness, adding, quote, "All of us want to learn lessons." It's estimated that roughly 50 percent of New Orleans is still under water, if you can call that filthy muck water, down from 80 percent when the levees gave way. And speaking of muck, the city's main wastewater treatment plant is expected to get up and running sometime today.

Four hundred twenty-six deaths are now confirmed in Katrina's multi-state path of catastrophe and still counting. Louisiana accounts for 197 of those, and while a final tally won't be known for weeks, Army General Russell Honore predicts it will be, quote, "a heck of a lot lower" than earlier estimates of 10,000.

And one small step for Gulfport, Mississippi, that could be seen as one giant mental leap on to the road to hurricane recovery. CNN's Allan Chernoff joins us now with all the latest news from the storm affected region. And I think there's good news in that a lot of kids are starting school. Right, Allan?

ALLAN CHERNOFF, CNN CORRESPONDENT: Well, certainly that is one step in the right direction. This morning, the St. James Catholic Elementary School opened its doors for the first time in two weeks, the first school in the region actually to open up.

They didn't sustain all that much damage, only three broken windows. But certainly, they had to do a lot of cleaning up on the outside of the school. But the kids back in school. The parents, boy, were they happy this morning.

Around me we're here now in downtown Gulfport. And there's a tremendous amount of cleanup being done. As you can see debris littering the curbs here. Most of this actually thrown out from the businesses here.

Right behind me you can see the Palace Grill, they have the front window just blown out. The roof also severely damaged. They've been cleaning up for nearly two weeks now. Of course, it has been two weeks since the storm.

Also, to my right here, you can see those ducts going all the way up the Hancock bank building. Those are air-conditioning ducts. What the cleanup companies do is they want to dry out the offices, so they blow in air-conditioning and also have dehumidifiers in there. They're trying to dry everything out, clean it up.

After that they come on in. They'll rip out the carpet, the sheetrock, et cetera, and have it all carted away.

So the recovery here, the cleanup, well under way, and the president is supposed to be visiting right near here within the next hour or so. So he would see, certainly, some progress on the ground, but also severe devastation in this area -- Kyra.

PHILLIPS: Have you been able to meet with any of the people that have been coming back, and is that able to happen? I know in New Orleans it's sort of give and take. Some folks are able to come back in. Sometimes they're stopped or they're told they can't come back in. What's the feeling there in Mississippi?

CHERNOFF: Where we're standing right now, this is a restricted area. There are guards just about a block up from us. In fact, if we pan over, you can probably see the line of cars -- of cars over there. And there's a National Guard giving approval to people who do belong here, business owners. It's OK for them to come on in. Or any law enforcement people. And, of course, the cleanup crews.

But further out in town, that's where everybody is just fine to go. So it is what restricted around here. They're trying to make sure that tourists don't just come on over, take pictures and get in the way of the cleanup. Also, of course, some areas, quite dangerous.

PHILLIPS: What about the casinos, Allan? You had done a couple of live shots from there. What can you tell us about -- I mean, that was such a huge part of the economy. What's the latest with the rebuilding of those and how owners are going forward in trying to help rebuild that city, too, of course, with a lot of money made from those casinos?

CHERNOFF: Absolutely critical to the state, critical to this region, and already for a week and a half they've been inside of those casinos cleaning up. Crews go in there every single day.

All of the casinos around here have promised to rebuild. And that certainly is making plenty of people feel somewhat hopeful, because as we've said, very important in terms of jobs, in terms of revenue for the entire region.

Biloxi, where we were yesterday, that city literally has been built up on the casino industry, 10 casinos alone right there.

PHILLIPS: Allan Chernoff, live in Gulfport, Mississippi. Allan, thank you so much.

And two weeks after Hurricane Katrina slammed New Orleans, President Bush today got his first close look at the devastation there. CNN's Sean Callebs has the latest.


SEAN CALLEBS, CNN CORRESPONDENT: The cleanup continues here in New Orleans. We're on the fringe of the French Quarter. Next to me you can see some workers with the Bureau of Indian Affairs, members of the proud Navajo nation from Arizona. Right now they're trying to knock down a large section of this magnolia tree that is in danger of falling.

President Bush had a firsthand look at some of the devastation today, looking around the French Quarter first, then driving to areas that suffered much, much more devastation, including the area around the convention center, really the flashpoint for everything that went wrong in the aftermath of Hurricane Katrina. Thousands of people were stranded there for days with little food or water.

Now, today and yesterday bulldozers are clearing much of the debris in that region. You can hear Black Hawk helicopters overhead. Really, this city is showing some signs of life. Power is back on in areas. Also, some downtown businessmen have been allowed to come in for a short while and check out their businesses, but they must leave.

Meanwhile, the military has backed off the threat to possibly force the 10,000 remaining citizens out of New Orleans. They are not going to do that for the time being.

Floodwaters still covering about 50 percent of this city. Pumps are working. Some sewer systems are back up and running. And the search and rescue operations here, indeed, continue.

Sean Callebs, CNN in New Orleans.


PHILLIPS: All right. Now back to Wolf Blitzer live in THE SITUATION ROOM with more on the John Roberts confirmation hearings -- Wolf.

BLITZER: Thanks very much, Kyra. We're going to continue to check back with you, as well, for all the other developments involving Hurricane Katrina.

We're going to go right back to the confirmation hearings. We're standing by here to hear from Senator Dianne Feinstein, the only woman member of that committee. We're going to take a quick break. When we come back we'll hear from Dianne Feinstein, Democrat of California. Hear her views on the confirmation of Judge John Roberts.

Much more of our coverage right after this.



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