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Senate Judiciary Committee Holds Conformation Hearings on Judge John Roberts

Aired September 12, 2005 - 13:31   ET


WOLF BLITZER, CNN ANCHOR: There are 18 members on the Senate Judiciary Committee, 10 Republicans, eight Democrats, all of them men except for Dianne Feinstein, Democrat of California. She's making her opening statement right now.
SEN. DIANE FEINSTEIN (D), CALIFORNIA: The court is going to consider some very critical cases: the standard of review for abortion cases; the health of the mother; the constitutionality of an Oregon law which permits physician-assisted suicide for terminally ill but legally competent individuals; whether two oil industry leaders and competitors can be allowed to work together to fix the price of gas once they've entered into a joint venture; in addition, the rights of enemy combatants; the so-called partial birth abortion law; whether Congress has the authority to protect our nation's environment through legislation.

The Endangered Species Act is winding its way through the appellate courts. It looks like they differ. And if the courts keep going the way they're going, many of us feel that they will take away from the Congress the grounds on which we base legislation in the environment.

This is an enormous macro question that you're going to be right in the middle of as a pivotal force.

Chief Justice Rehnquist, I believe, will be remembered not only for this distinguished tenure, which it certainly was, but also for applying a much more restrictive interpretation of the Constitution which has limited the role of Congress.

In recent years, the court has adopted a politically conservative states' rights view of several constitutional provisions.

As a result, congressional authority to enact important legislation has been significantly curtailed.

This has occurred through it's restrictive interpretation of the spending clause, the commerce clause, the 14th Amendment, the 11th Amendment -- all of which Congress uses to enact certain laws.

Based on these federalism grounds, the court has wiped out all or key parts of legislation addressing issues such as gun-free schools -- should schools not have guns within 1,00 feet; religious freedom; overtime protection; age discrimination; violence against women; and discrimination against people with disabilities. In fact, over the past decade, the Rehnquist court has weakened or invalidated more than three dozen federal statutes. Almost a third of these decisions were based on the commerce clause and the Fourteenth Amendment.

If you, Judge Roberts, subscribe the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be enormous. It would severely restrict the ability of a Congress to tackle nationwide issues that the American people have actually elected us to address.

Now, as the only woman on this committee, I believe I have an additional role in evaluating nominees for the Supreme Court, and that is to see if the hard-earned autonomy of women is protected.

Like any population, women enjoy diverse opinions, beliefs, political affiliations, priorities and values. And we share a history of having to fight for many of the rights and opportunities that young American women now take so much for granted. I think they don't really recall that during the early years of the United States, women actually had very few rights and privileges. In most states, women were not allowed to enter into contracts, to act as executor of an estate. They had limited inheritance and child custody rights.

It actually wasn't until 1839 that a woman could own property separate from her husband, when Mississippi passed the Married Women's Property Act.

It wasn't until the 19th century that women began working outside their homes in large numbers. Most often, women were employed as teachers or nurses, and in textile mills and garment shops.

As women entered into the workforce, we had to fight our way into nontraditional fields: medicine, law, business, and yes, even politics.

The American Medical Association was founded in 1846. But it barred women for 69 years from membership, until 1915.

The American Bar Association was founded in 1876, but it barred women and did not admit them until 1918. That's 42 years later. And it wasn't until 1920 when, after a very hard fight, women won the right to vote -- not even 100 years ago.

By virtue of our accomplishments and our history, women have a perspective, I think, that's been recognized as unique and valuable. With the retirement of Justice Sandra Day O'Connor, the court loses the important perspective she brought as a woman and the deciding vote in a number of critical cases.

For me -- and I said this to you privately, and I'll say more about it in my time on questions -- one of the most important issues that needs to be addressed by you is the constitutional right to privacy.

I'm concerned by a trend on the court to limit this right and thereby to curtail the autonomy that we have fought for and achieved; in this case, over just simply controlling our own reproductive system rather than having some politicians do it for us.

It would be very difficult -- and I said this to you privately and I said it publicly -- for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember -- and many of the young women here don't -- what it was like when abortion was illegal in America.

As a college student at Stanford, I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back-alley abortion. I knew a young woman who killed herself because she was pregnant.

And in the 1960s then, as a member of the California Women's Board of Terms and Parole, when California had what was called the indeterminant sentence law, I actually sentenced women who committed abortions to prison terms. I saw the morbidity. I saw the injuries they caused. And I don't want to go back to those days.

How the court decides future cases could determine whether both the beginning of life and the end of life decisions remain private, or whether individuals could be subject to government intrusion or perhaps the risk of prison.

And I will be looking to understand your views on the constitutional provision for providing for the separation of church and state -- once again, history.

For centuries, individuals have been persecuted for their religious beliefs.

During the Roman Empire, the Middle Ages, the Reformation, and even today, millions of innocent people have been killed or tortured because of their religion.

A week ago, I was walking up the Danube River in Budapest when I saw on the shore 60 pair of shoes covered in copper -- women's shoes, men's shoes, small tiny children's shoes. They lined the bank of the river.

My time is already up? May I just finish this one paragraph?


FEINSTEIN: During World War II, it turned out that Hungarian fascists and Nazi soldiers forced thousands of Jews, including men, women and children, to remove their shoes before shooting them and letting their bodies float down the Danube.

These shoes represent a powerful symbol of how religion has been used in catastrophic ways historically.

The rest of my comments we'll have to wait for.

Thank you very much, Mr. Chairman. SPECTER: Thank you very much, Senator Feinstein.

Senator Sessions?

SEN. JEFF SESSIONS, (R) ALABAMA: Thank you, Mr. Chairman.

And, Judge Roberts, recalling the words of former Senator Alan Simpson...

BLITZER: All right, we're going to break away from the hearing once again, but will continue to go back. Jeff Sessions, Republican of Alabama, is about to deliver his opening statement.

John Ashcroft, the former attorney general of the United States, himself a former U.S. senator from Missouri, former governor, he's helping us better understand this process.

Attorney General Ashcroft, if you were John Roberts, how would you answer the specific questions on Roe vs. Wade that are inevitably going to come up, abortion rights for women?

JOHN ASHCROFT, FORMER U.S. SENATOR: Well, obviously, I'm not John Roberts, and he's not going to look to me for advice on that. He's answered these questions before. And he has decided what he would say in a judicial setting. When he was confirmed a couple of years ago as a judge on the circuit court of appeals for the D.C. Circuit, he was asked, and at that time, he said he considered Roe vs. Wade to be settled law.

And then he went on to say a little more than settled, and indicated that he would have no -- no difficulty in respecting those precedents when it comes to cases that were before him. I would expect that he's going to have a frame of reference to those remarks in whatever he says, in regard to this issue as it relates to the current confirmation proceedings.

BLITZER: Jeff Toobin, you've spent a lot of time studying this specific question. How do you suspect he will answer that question?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: I think he -- I don't think that answerlr, frankly, is going to cut it in the Judiciary Committee with -- for a Supreme Court nomination. When he was nominated to the D.C. Circuit, he could say -- and he was right -- look, I'm just a lower court judge, I can't overturn Roe v. Wade. That's the law of the land and I have to abide by it.

As chief justice of the United States, he will have a vote on whether Roe v. Wade should be overturned. There are at least two other justices on that court, Clarence Thomas and Antonin Scalia, who have said repeatedly they think Roe v. Wade should be overturned. So I think he is going to have to speak at least to the issue of the right to privacy. Does he believe there is a right to privacy protected by the Constitution? Scalia and Thomas don't think so.

So I think merely repeating that, you know, it's settled law -- it's only settled law because the Supreme Court says it's settled. And the Supreme Court can unsettle it in a big hurry.

BLITZER: Jeff Toobin, thank you. Jeff Greenfield, I want to bring him in, as well. What do you think?

JEFF GREENFIELD, CNN SR. POLITICAL ANALYST: This is the dilemma that anyone before the court is going to face. In fact, Ruth Bader Ginsburg, about whom we've heard much in her refusal to answer questions, did explicitly say in her confirmation hearing she was pro- choice. She had no choice because she litigated that issue and she'd been so out front.

In the case of Roberts, it's perfectly appropriate for him to say I'm not going to prejudge. No senator will push that hard, or if they do they'll be shot down. But when you start asking are there unenumerated rights? Well, what are they? Is privacy is one of them, how far does it go? You begin to see where the people who are hesitant to confirm Judge Roberts are going to try to push him as far as possible.

We just heard Dianne Feinstein, in a remarkably personal account of her confrontation with the abortion issue, say she'd find it very difficult to vote for someone she knew would overturn Roe vs. Wade. And I Judge Roberts, like, in this case, like most judges before this court -- prospective justices, rather -- will say I'm not going to tell you that it's inappropriate.

BLITZER: I want to just point out, guys, these pictures that we're seeing, these are helicopters, including Marine One, carrying the president of the United States. He's going from New Orleans. He's about to land in Gulfport, Mississippi, continuing his tour there. We'll continue to watch the president of the United States visiting the hurricane area. Much more coverage on that coming up.

John Ashcroft, when John Roberts hears that personal, passionate statement from a senator like Dianne Feinstein, saying we can't go back, she said, to those days where women used to have to go into those back rooms to get an abortion. Now how do you -- how do you suspect he reacts to hearing that from a senior member of the Judiciary Committee?

ASHCROFT: Well, he's used to good arguments. He's used to emotional arguments. And he's used to also a thorough and studied understanding of the law in situations like that. So I think he's anticipated this. If there's one thing you know about him, he's a person, having been steeped in Supreme Court arguments, as having prepared. He will have had all of these questions rehearsed, answers to them in his own mind. And he probably has a variety of levels at which he will try and answer these questions, to the extent that he feels like he has to do more or be more forthcoming.

He will not compromise his ability to handle cases as a member of the Supreme Court. And there are emotional stories, there are emotional pleas that can be made on all sides of virtually all these issues, and that's something that he's accustomed to handling.

BLITZER: John Ashcroft, remind our viewers, when you were questioned for your confirmation hearings before the Senate Judiciary Committee to become the attorney general of the United States, how did you finesse your personal opposition to abortion rights for women, at the same time becoming the attorney general and having to enforce the law of the land?

ASHCROFT: Well, it's pretty easy to be able to say that you'll enforce the law. And I enforced it uniformly and evenly and aggressively when I was the attorney general. And there is an arrogance that I don't believe John Roberts has, and I hope I certainly didn't have, thinking that because I had a personal preference that I could displace the rule of law.

And once something is the law, it should be enforced. I said that when I was up for confirmation and very frankly, I acted in that respect as attorney general. And I think those who insist on the law as their guide and respect for the rule of law have that responsibility, even when the rule of law doesn't come down in the direction that they had hoped.

BLITZER: And this picture we're seeing is Marine One, the president of the United States about to get off Marine One. It's just touched down in Gulfport, Mississippi. And we'll continue to watch this picture.

Jeff Greenfield, go ahead and weigh in on this sensitive issue.

GREENFIELD: First, a little footnote. Jeff Sessions, the Alabama Republican who is now questioning Judge Roberts, is in a unique position. Some 20 years ago, his appointment to the federal bench was blocked by a member of the Judiciary Committee, former Senator Howell Heflin Alabama. Jeff Sessions is now sitting as a member of the committee that blocked him being a federal judge. You don't see this too often.

But I think the answer that General Ashcroft gave to the committee -- the problem that Roberts is going to have is what the Democrats have been hammering on. John Ashcroft served at the pleasure of the president. Judge Roberts, if he's Chief Justice Roberts, will be on that court as long as he's healthy. And that's why many senators argue that the difference accorded to a president's choice for a cabinet member is not appropriate for a lifetime appointment.

Russ Feingold of Wisconsin, a pretty liberal Democrat, as I remember, General, voted for Ashcroft's confirmation, saying the president has a right to his choice. They don't believe that generally true of the bench because it's a lifetime appointment.

BLITZER: All right, the president getting off Marine One right now. We'll watch the president. We'll see if he makes a statement. He's going to continue on that tour. The Coast Guard Vice Admiral Thad Allen is there with him. Haley Barbour is receiving the president, as is appropriate in his home state of Mississippi. We'll watch this picture.

Jeff Toobin, we're going to hear a lot about this right of privacy in the course of the questioning of Judge Allen. Explain the connection -- it's sort of a code phrase, right of privacy for abortion rights for women, but talk a little about that. Explain why it's going to be so significant over the next few days.

TOOBIN: Well, as conservatives have pointed out many, many times, the words right to privacy never appear in the Constitution. But in a series of cases interpreting various other parts of the Constitution, starting really in the 1920s, when laws were passed, anti-German laws after -- in the anti -- in the World War I period when there was a great deal of hostility to Germany, there were laws that said parents could not send their children to parochial schools or have them learn German.

The court started to develop an idea that there was within the family certain rights, a right to privacy that surmounted the government's attempts to invade it. Then in 1965, and probably -- with the case where really, the right the privacy put itself squarely in the Supreme Court's history, Griswold against Connecticut, Connecticut had a law that said women could not buy contraceptives, even if they were married, and the Supreme Court said that violates the right to privacy, which it explicitly announced in that case.

And just eight years later, was 1973, Roe vs. Wade when the court said the right to privacy includes a woman's right to have an abortion in the early stages of her pregnancy, and that right has subsequently, just two years ago now, come to include the right to engage in homosexual sodomy. In a famous opinion by Justice Anthony Kennedy, Lawrence V. Texas, he said that the right to privacy includes, you can't be criminally punished for engaging in consensual homosexual sex in the privacy of your own home. That, in broad outlines, is the right to privacy, and there are a lot of conservatives, including some sitting on the Supreme Court, who think the whole thing is a bunch of hooey, doesn't exist, shouldn't exist, and that's why we're going to hear a lot about it.

BLITZER: We have a good conservative right here in THE SITUATION ROOM, John Ashcroft. What do you think, a bunch of hooey?

ASHCROFT: Part of the debate is not whether or not the Constitution should ever be changed, but part of the debate is among conservatives. They think that the Constitution when it should be changed should be changed as it provides for change in the Constitution. You know, the Constitution isn't something that is either static to remain as it was written originally or else to be adjusted regularly with Supreme Court decisions when a half a dozen people make a decision to change it on their own. There are means, and on a number of occasions the Constitution has been changed. It was changed to ban slavery, changed -- and so the question is not really whether or not the Constitution ever is adjusted or ever changed. The founders didn't expect it to survive forever as they wrote it.

The question is, what dynamics will occasion the change, and there are -- and I think there's a strong position, one which I have a lot of sympathy for that if it's going to be changed, it ought to be changed in accordance with the Constitution, where the American culture gets a chance to act on it, and not changed as a result of the fact that five out of nine judges made a decision that the Constitution is to be made different.

GREENFIELD: And by the way, Wolf, there were some liberals who have a problem with Roe Vs. Wade, some liberal academics who say, you know, if I'm personally for the right to aboriton, but the court overreached. Ruth Bader Ginsburg, at one point, Justice Ginsburg now, actually said she thought Roe Vs. Wade went too far and took the politics, the Democratic process out of it.

On the other hand, you've got a couple of conservatives who look at that 9th Amendment, which is rarely used. It says just because we list some rights in the Constitution doesn't mean there aren't others, and they scratch their heads and say we don't exactly know what that means, but it sure suggests that just because you can't find a right in so many words in the Constitution doesn't mean it doesn't exist, which is why there's full employment for lawyers all over America.

BLITZER: All right. Stand by, Jeff, Jeff, John Ashcroft.

Senator Dianne Feinstein has just emerged from the Senate caucus room from the hearing. She's joining us now live.

Thanks, Senator, very much for joining us.

You got pretty passionate, pretty emotional in speaking about your personal recollections before abortion rights for women were legal in this country. What specifically do you want to hear from John Roberts that would satisfy you that he's qualified to be the chief justice of the United States?

FEINSTEIN: Well, I think it's a step ahead to come away with the view that he would not overturn Roe v. Wade.

I don't expect him to answer the question directly. I do expect that he will share some of his views on privacy, on what makes for well settled law, whether Brown v. Board of education, for example, is settled law, and whether Roe would fall into that same pattern.

There are ways, I hope, of asking the question to come away with an opinion.

I don't expect to have an ironclad answer on any of this. I do think, though, that people deserve to know how he thinks. And the degree to which questions can reveal his line of thinking and how he approaches the law and how he would approach the setting up of these cases I think it would be important.

BLITZER: Would it be adequate for you if he said, as he did the last time he went through a confirmation process, that Roe v. Wade is settled law as far as he's concerned?

FEINSTEIN: Well, not entirely, because he said that in answer to a question Senator Durbin asked him in his District of Columbia circuit court hearing. But, of course, a Supreme Court justice can overturn what is settled law. Now, the question is how he really looks at precedent and stare decisis and how he looks back on the various other cases that have been built upon that and conditioned Roe.

So I think we can come out of this hearing with a fairly good view. I'm not sure of that, but we'll certainly try.

BLITZER: Senator, as the only woman to serve on the Senate Judiciary Committee -- 18 members; you're the only woman on that panel -- you have said you have a special obligation. Define that obligation to us.

FEINSTEIN: Well, you see, women haven't had their rights come easily. And people forget that, young women in particular. They don't realize that when the United States was born, so to speak, women had virtually very few rights and those rights have been fought for and earned.

I mean, we couldn't own property outside of marriage. We had limited child custody rights. There were a whole series of -- we had to fight our way into the work force, into medicine, into law, even into politics.

FEINSTEIN: We had to fight for the right to vote. That's probably the most common bit of knowledge that's out there. And didn't get the right to vote until 1920.

So women have achieved a measure of autonomy. It is important that that be recognized and that that be protected by the court so that women can continue to grow and continue to be judged as equal.

You know, even the Equal Rights Amendment, which was very simple -- 36 words which would guarantee that women would serve equal prison sentences to men for the same event, same crime -- that was not enacted.

So it's been a constant fight. And so how this new, young Supreme Court chief justice feels will be very interesting and, I think, very relevant.

BLITZER: You met with John Roberts in private before these hearings began. How did that go? Did he give you the answers in private without the cameras there that satisfied you that he should be the chief justice of the United States?

FEINSTEIN: Well, I can only tell you that I felt very good after our private meeting. I felt that he understood -- now, you know, a lot of this is reading body signals because you can't ask the question, "How are you going to vote in X, Y or Z?" I certainly understand that.

But you can get a general philosophy. You can get a way he would approach these laws.

And I came away feeling that people would get a very fair shake from this person and that he understood the need to protect everyone's rights, rich and poor, all different races, creeds, colors; that he understood a lot of the sensitivity.

Now, having said that, in his 39 cases when he went before the court, he represented a client and that client had specific views and specific arguments that needed to be addressed and he did that and he did it very well. But it's hard to piece together what his views are from some of those cases.

So, you know, what's often said in private may not be said in public. So the key is to get him to say what he will in public as a sign of assurance or reassurance, if you will, to people who are listening outside who haven't had the opportunity of a conversation.

BLITZER: Senator Feinstein, thanks very much for spending a few moments with us. I know you're anxious to get back inside the hearing room.

FEINSTEIN: You're welcome.

BLITZER: We'll continue to watch these hearings not only today, but throughout the week. We're going to take a quick break. Much more of our special coverage here in THE SITUATION ROOM. We'll not only watch what's happening in the confirmation hearings, but we'll also make sure you're fully up to date on what's happening in the aftermath of Hurricane Katrina, two weeks exactly to the day since it hit.

We'll be right back.



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