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Roberts Hearing Continued

Aired September 13, 2005 - 14:14   ET


WOLF BLITZER, CNN ANCHOR: Let's listen to Senator Specter.
SEN. ARLEN SPECTER (R-PA), CHAIRMAN: ... electronic media, to make appropriate introductions. And then I've also been told that my watch is a minute fast, so we're going to corrected all those miscues.

For 30 minutes, Senator Kyl?

SEN. JON KYL (R), ARIZONA: Thank you, Mr. Chairman.

There are several preliminary things I'd like to do and then get into a couple of questions that I wanted to ask you, Judge.

First, to my colleagues, with reference to some questions that attacked policy positions of the Reagan administration when you were working there as a lawyer, Judge Roberts, I tend to agree with you that it wouldn't be appropriate in your role as a current judge, not to mention your service on the Supreme Court, to be put in the position of defending policy positions of a previous administration.

But to the extent my colleagues would like to engage in that debate, probably not in this forum, I'd be happy to accommodate them in that matter.

Judge, as to your role, I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here. Obviously, you've drawn the line at issues that may come before the court.

But I think you have already added to what we already knew about your approach to judging. That's the key question here, and I appreciate what you have added to that. And I'll get into a little bit more of that in a moment.

There are a couple of other items, though, that I would like to clarify. Our colleague, Senator Biden, had engaged you in a colloquy regarding some testimony given by Justice Ginsburg. And he suggested that Justice Ginsburg was asked about a specific case called Moore v. City of Cleveland and that even though she had written about that case, she volunteered to speak about it.

Now, I think, appropriately, you're not going to be a judge or umpire in this case as to whether she did or did not exceed the rule that she set down. That would be highly inappropriate. But I'd like to correct the record because that isn't what transpired.

I won't read the entire transcript here but would ask that the relevant portions be inserted in the record at the conclusion of my remarks.

But just to set the background of it, she is testifying here in response to questions by Senator Hatch.

And she said, "I have said to this committee that the finest expression of that idea of individual autonomy and personhood and of the obligation of the state to leave people alone and to make basic decisions about their personal life, Justice Harlan's dissenting opinion on Poe v. Ullman."

Senator Hatch said, "Right."

And then then-Judge Ginsburg said, "After Poe v. Ullman, I think the most eloquent statement of it, recognizing that it has difficulties -- and it certainly does, is by Justice Powell in Moore v. City of East Cleveland, the case concerning the grandmother who wanted to live with her grandson.

"Those two cases more than any others, Poe v. Ullman, which was the forerunner of Griswold case, and Moore v. City of East Cleveland , explain the concept far better than I can."

And then there are other things that occur in the transcript.

My point here is to note that she was not asked a specific question about this case. She volunteered it as one of two cases that had interesting language that expressed what she wanted to express with regard to the principle of individual autonomy and personhood.

And then further down in the transcript, she said, "Senator Hatch, I agree with the Moore v. City of East Cleveland statement of Justice Powell." She goes on to describe how he reached it.

And later Senator Hatch said, "You mean with the position of Justice Powell?"

And Judge Ginsburg said, "The position I have stated here -- you asked me how I justify saying that Roe has two underpinnings, the equal dignity of the woman idea and the personhood idea of individual autonomy and decision-making. I point to those two decision opinions as supplying the essential underpinning."

And then she said, "In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell's statements. Otherwise, I could not have written what I did."

The point is that this is a matter on which she had written extensively. And therefore it is not the case, A, that she was asked about the case and was responding, but rather she brought the decision up; and, B, she used it to illustrate what she had already written about extensively.

So I think that will help to clarify the record. We'll put those portions of the transcript in the record and people can judge for themselves whether she violated the rule which she has laid down, a rule which you subscribe to with respect to giving hints or ideas about how you might rule in future cases.

If you'd like to comment on any of that, you certainly may do so. But I doubt that you would want to do so.

One of the -- the other item that I would like to insert in the record is a memorandum. This was discussed, I believe, in Senator Biden's questioning regarding a memorandum dated February 12th, 1982, regarding proposed intervention in Canterino v. Wilson.

And there were excerpts of that read to which you were asked to respond. I'd like to have the entire memorandum inserted in the record at this point so that people can judge for themselves.

SPECTER: Without objection, it will be made a part of the record.

KYL: Thank you very much, Mr. Chairman.

Now, Judge Roberts, one of the themes in the statements of my colleagues, particularly on the other side of the aisle here, yesterday was an expression of concern that you might, as a Supreme Court justice, undo what they describe as progress. This progress is represented for my colleagues by some of the court's decisions over recent decades and also by some legislation.

My colleagues expressed a heartfelt concern for preserving this progress. Another one of my Democratic colleagues endorsed a standard that a past member of this committee articulated for evaluating nominees.

He asked: Will the nominee expand or contract freedom? You recall that. Progress and freedom: I think any American would find it quite difficult to quibble with these two ideals. I do not think that you will find a member of the Senate who would not express support for both progress and freedom, and for many of the specific reforms that have been discussed.

But as I thought about those two words last night and about my colleagues' genuine concern for protecting what they understand as progress and freedom, I began to ask myself what those two words actually mean in the context of your nomination and the court's function more generally.

When can we say that a particular decision by the Supreme Court expands or contracts progress or freedom?

Actually, it's more complicated as you stop and think about it.

For example, earlier this year, the Supreme Court issued a decision that allows the government to take one private individual's property, to transfer that property to another private individual or entity.

The court's majority held that such an action is consistent with the Constitution's public use requirement for takings of property, so long as there is some indirect benefit to the government, so long as, for example, the government expects to receive more tax revenues from the second party's use of the property.

All of the most commonly described liberal members of the Supreme Court joined in the opinion. And I'm certain that the types of involuntary, government-engineered development projects that this decision allows will be viewed by many as progress.

I'm not so sure. Is it really progress for one more politically influential private party to be able to use the government's power of eminent domain to take another less politically connected individual's property?

And this is constitutional so long as the government anticipates increased tax revenues? I don't think this precedent represents an advance of either progress or freedom, in other words.

In 1975, the court issued an important decision giving public school students the right to hearing before they're suspended for disciplinary reasons. And the net effect of these decisions, as many school administrators and teachers have told me, has been to make school discipline much harder to implement and enforce.

The procedures, for example, for removing a disruptive student from the classroom have become sufficiently involved that in many cases the school simply doesn't do it. The student remains in class and the other students' learning suffers.

The writer, David Frum, has described this line of Supreme Court decisions as the bad king's Magna Carta.

Well, many older teachers, in particular, can describe the decline in school discipline and order that followed from these decisions.

And so I'm not sure that even though many would subscribe to the decision of the court, that it really represents an advance of freedom or progress, especially if most children are less free in their school environment.

In 2003, the Supreme Court issued a decision that effectively prevents the government from outlawing child pornography if that pornography is made with computer-generated images of children.

The effect of these decisions is that a whole class of child pornography effectively can't be prohibited. Many of those who work in the criminal justice system, particularly those familiar with sex offenders and their mindset, have expressed grave concern about the decision. They believe that the existence and availability of this kind of pornography can affect the behavior of certain sex offenders, that it sends a message that their impulses are not shameful but, rather, that they're shared by others and can be indulged.

Again, I have no doubt that some view this decision as an advance of freedom. And, again, I would disagree. A world where these types of crimes occur with frequency is a world where parents are constantly afraid for their children, afraid to let them play outside alone, to go outside of their sight, even afraid to let them go on the Internet. And I don't see this as an advance of freedom.

The conclusion that I have -- and there are other decisions we could point to as well -- but what I have come to conclude is that it is not your function as a judge to decide how best to advance progress and freedom; that these are decisions that all Americans need to be involved in making -- sometimes through their elected representatives; that the formula for creating progress and freedom in society is not predetermined, but rather, both of these values require a balance of competing values.

Society needs order and stability on the one hand; individual autonomy on the other.

That there are few absolutes.

So really the question here is how you view your role as a judge, with respect to this concept of advancing freedom and progress, especially since you cannot, for the most part, choose what cases come before you to decide.

What is your take on your role, if you were to become the chief justice of the United States Supreme Court, in considering this notion of advancing freedom and progress through your decision-making?

JOHN ROBERTS, CHIEF JUSTICE NOMINEE: Well, Senator, judges and justices do have a side in these disputes. They need to be on the side of the Constitution. And, in most of the areas, what the Constitution provides is that these sorts of policy debates -- which approach is better suited to promote freedom or to promote progress -- are vested in the legislative branch.

There are areas where the Constitution sets aside certain areas, in the Bill of Rights and other protections of liberty, and says that these areas are beyond the reach of the policymaking branches.

And judges and justices have the responsibility to enforce those provisions in the Constitution.

But outside of that, judges and justices should not take sides in these disputes.

I think people on both sides need to know that if they go to the Supreme Court, that they're going to be on a level playing field, that the judge is going to interpret the law, that the judge is going to apply the Constitution and not take sides in their dispute.

That's what this body is for in Congress and in the state legislatures, to resolve those types of policy disputes.

And so long as the resolution is consistent with the Constitution, that's what the judges are there to ensure. And so long as they ensure that, the framers' notion was that freedom and progress would be advanced by allowing those decisions to be made by the people's elected representatives.

KYL: I appreciate that.

You said in response to another question, you used the phrase "as applied."

Now, most of the lawyers appreciate what you meant by that.

But I wonder if you could elucidate, particularly for those who are not learned in the law, what the difference is between dealing with a case, an issue of constitutionality, per se, or in an as- applied context; and how it is possible, for example, in case number one, to uphold the constitutionality of the law on its face, for example, and yet in case number two, it comes down a few years later to declare that in that situation, the statute is unconstitutional as it's applied to the facts of that case.

How can that be?

ROBERTS: Well, the distinction is a basic one in constitutional law.

If you have a facial challenge to a law, as we call it, or a per se challenge might be another way to put it, you're basically saying the law is unconstitutional without regard to the facts of the case, without regard to the record.

Whatever the application might be, whoever the parties challenging it might be, there's something about the law so fundamentally flawed that it's unconstitutional however it's going to be applied.

That's a fairly narrow category of cases.

The other category is so-called as applied challenge.

You have a law that you know is not facially unconstitutional, but it may be applied in an unconstitutional manner.

An easy example -- you have a normal statute that's perfectly constitutional. If it's applied in a discriminatory manner, it may be unconstitutional as applied in that case.

If it can be applied in a constitutional matter, so long as the facts are a certain way and if the facts turn out in the record not to meet those requirements, then it can be unconstitutional as applied.

And in those situations, you do need to know what the record is, you do need to know what the facts are, because the challenge might be this law might be fine for other cases but when you apply it to this case, when you apply it to this record or these facts, then it's unconstitutional.

So a statute that is constitutional on its face can always be applied in an unconstitutional way and so you can't give a categorical determination that there's no way in which that statute could ever be unconstitutionally applied. KYL: And this is another reason why when you're asked, well, would you agree that a certain decision is a good decision and should be maintained as part of our jurisprudence and so on, in addition to not wanting to give a hint as to how you might rule on a case, to some extent it's impossible to say because you don't have the facts of the case before you and the facts of case A could cause you to render a different decision than the facts of case B.

ROBERTS: Well, that's right. And particular precedents, obviously, could be applied to variations on the fact situation that gave rise to that precedent. And sometimes those facts lead to a different result, sometimes those facts don't and it makes sense to continue to apply it in a particular manner.

But, again -- and I think most judges are of this view -- that the facts are a critical part of the resolution of any dispute.

KYL: I know perhaps to non-lawyers this can cause frustration: "Well just tell me one way or the other."

But judges have got to be fair to make sure that they don't treat all cases as the same, because the fact differences could make the difference between your ruling one way or another in a case. And every litigant probably feels that their case is a little bit unique. Judges need to think about that and certainly need to be willing to consider that this person's case might be unique and, therefore, it has to be looked at in a way different than a similar, but perhaps not identical case.

ROBERTS: Well, of course, that's a lot of how the law develops. And it's lawyers arguing in court, a lot of what -- or I used to spend my time doing was saying, "This precedent doesn't apply. And the reason it doesn't apply is because these facts are different, and so you should reach a different result," or arguing that, "This precedent does apply even though these facts are different. The reasoning still covers that situation."

And then that leads to the next case and so on.

KYL: And it's that sort of gradual development of the law that helps shape the rule of law.

Now, you've seen that each one of us have a couple of soapboxes that we like to mount. And after about five minutes of our opinion, then we ask you a question.

I've got one of those for you, something that's been bugging me. There's been a lot of discussion about the Supreme Court's reliance, or even reference to, foreign law to determine the meaning of the United States Constitution. I just wanted to note a couple of the cases in which this was done recently.

A case this year, Roper v. Simmons, in which the Supreme Court reversed a prior precedent and decided that it would be unconstitutional to execute a man who was 17 at the time that he brutally murdered a woman by throwing her off of a bridge. In deciding the case, the Supreme Court not only, in my view, engaged in questionable analysis of American law, it spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Pakistan, Nigeria and China.

The court claimed that we ought not to, "stand alone on this issue" and that we should pay attention to what other nations do when we interpret our Constitution.

And in 1999, Justice Breyer argued that the court should consider whether a long delay in executing an convicted murderer, a delay, by the way, caused by his repeated and arguably frivolous appeals, should be deemed cruel and unusual under the Eighth Amendment. And he relied on the legal opinion of courts in Zimbabwe, India, Jamaica and Canada.

The trend, if it is to become one, is greatly troubling to me and to many of my colleagues. Our Constitution was drafted by the nation's founders, ratified by the states and amended repeatedly through our constitutional processes that involve both federal and state legislators.

It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law.

I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like.

For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind.

But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts.

Should we look to France to tell us what the free exercise clause means, for example?

Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom.

Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject.

But I wanted to hear from you.

So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.

And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law.

The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate.

The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country.

I think that's a concern that has to be addressed.

The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does.

Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever.

As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there.

And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution.

And I think that's a misuse of precedent, not a correct use of precedent.

KYL: I appreciate that. We have precious little time to discuss your personal career and views. And I want to take a couple of minutes to give you an opportunity to talk to us about a couple of things.

I see by the record that you've represented at least one death row inmate on a pro bono basis. And I would love to hear just about how you took that case and how you dealt with that case. ROBERTS: Well, I don't want to overly expand my role. It was consistent with what I've done in other cases.

There was a particular appellate issue that arose. The firm had been representing the inmate for sometime. One of the senior leading partners at the firm, Barrett Prettyman, had been heavily involved in his case for many years.

A particular appellate issue came up and I was asked to get involved and I was happy to do that and assist in that way. Again, it was kind of consistent with the general approach. It was in an area in which I had some experience and was happy to pitch in and help in that area.

KYL: There's a story, it may be apocryphal. If so, you can disabuse us of it now. But is it really true that you were required to argue a case before the Supreme Court on two day's notice and on that same day argued a case in the District of Columbia Circuit Court? Or is that not a correct story?

ROBERTS: No, that's the way it happened. I was scheduled to argue in the D.C. Circuit, and what happened is, the Friday before the Monday argument the clerk of the court called. We had a new lawyer who was not yet a member of the Supreme Court bar in the office, and I think we considered it kind of a pro forma matter.

We were moving his admission pro hoc vice so he could argue that day. And I think this was the Supreme Court's way of telling us that they didn't consider it a pro forma matter.

So we got notified the Friday night before the Monday argument that they were not going to grant the pro hoc motion, which is, of course, to let him argue the case even though he wasn't a member of the bar, and it fell to me to pick up that case, to be prepared to argue it Monday morning. Then in the afternoon I went and did the argument in the D.C. Circuit, which had been previously scheduled.

KYL: How'd you do in the two cases?

ROBERTS: Well, the court got it right in each case.


KYL: Enough said.

You know, another thing that fascinated me in clerking for two of the most incredible jurists in United States history, Judge Friendly and Justice Rehnquist, I was going to ask you privately, but I just have to ask you, and perhaps it'd be illuminating for folks, particularly law students: What did you learn from those two very erudite men?

ROBERTS: Well, I think, different things. You pick up different things.

With Judge Friendly, it was -- he had such a total commitment to excellence in his craft, at every stage of the process. Just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you'd come up with the right answers.

And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or a conservative. And he would be chastised for the same opinion, depending on which paper had read it, as either "that conservative judge" or "that liberal judge." And because he wasn't adhering to a political ideology, he was adhering to the rule of law.

And his devotion to it went to the extent -- and I know other of his clerks had the same experience. I do remember one time where he was -- signed the opinion and he kept writing it and writing it, and he finally decided it was not right. And so he wrote a dissent and he circulated the best majority he could come up with and said, "I don't agree with it, here's my dissent."

And, of course, as you might imagine, the other two judges were persuaded by his dissent and it came out that way.

That sort of open-mindedness at every stage, the appreciation that it may not be the argument, it may not be the briefs. It may be down to the actual writing that reveals what he thinks the right answer is.

And also, he did have an essential humility about him. He was an absolute genius; I mean, there's no doubt about it.

Certainly, whatever he was reviewing -- the decision of an agency, the decision of a legislature -- the notion of saying, "We defer to them because it's their responsibility," I think everybody would have agreed, we'd have a better result if we just let him make the decision regardless of what it was.

But he had the essential humility to appreciate that he was a judge and that this decision should be made by this agency or this decision by that legislature.

And when you read his opinions, he doesn't just, sort of, knock the pieces off the board. He marches through in a very careful way to let you know exactly how he reached the decision; why he went this way; if there was a difference among the precedents, why he chose this one; if there was a question of who has the responsibility, why he went that way.

And it lays it all out in such a way that you can understand the result.

And to this day, lawyers will say, when they get into an area of the law and they pick up one of his opinions, that you can look at it and it's like having a guide to the whole area of the law.

With then-Justice Rehnquist, who I clerked for the next year, I do remember doing a draft for him once and coming in. And he had thought it was, sort of, the first topic sentence of each paragraph was good and the rest of it could be junked.

And, you know, I pushed back a little bit as I thought, I hoped, was appropriate, and he said at that point -- he said, "Well, I tell you what, why don't we put all this other stuff down in footnotes and just keep, sort of, the first sentence of each paragraph. Put the rest down in footnotes." I figured, well, that was a fair compromise.

So I go back and rework it and hand it to him with some pride, and he looks at it and he says, "Well, all right, now take out the footnotes."


So one thing I learned from him was, I hope, to try to write crisply and efficiently; that a lot of extra stuff could be dispensed with.

And so many people mentioned during his eulogies and at the, sort of, gathering of the clerks his general approach to the balance between work and family life. I think that was a very important lesson to learn at an early age.

KYL: Judge, thank you. I think that tells us not only something about you as a person, about your style of judging, but probably some good lessons for all of us.

So than you very much.

SPECTER: Thank you, Senator Kyl.

Senator Kohl?

SEN. HERB KOHL (D), WISCONSIN: Thank you, Mr. Chairman.

Judge Roberts...

BLITZER: Seven senators have now asked questions. Nine senators, still to go, 18 members of the Judiciary Committee. Senator Herb Kohl of Wisconsin asking some questions right now. Those were not necessarily tough questions, Jeff Greenfield, that Senator Jon Kyl of Arizona just asked John Roberts, but the issue of using foreign laws as precedent in the Supreme Court, that's a hot button issue for a lot of Americans.

JEFF GREENFIELD, CNN SENIOR POLITICAL ANALYST: It's not only a hot button issue out in the -- to some extent in the country, but it's a hot button issue on the court itself, and I'm sure, Brother Toolin (ph) will correct me, but my memory is the dissent -- one of the dissents, Justice Scalia, I think on the case that we were talking about where Justice Kennedy among others used foreign law to indicate where the world was moving were pretty pointed.

In fact, since Jeffrey has written an entire article about this, Justice Kennedy who's -- perhaps I'd like to yield the balance of my time. JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I mean, it's an example of one of these issues where there is complete and total disagreement on the Supreme Court on this. And one of the things that's sort of frustrating about these hearings is that there seems to be a pressure on the nominee to sort of come to the right answer on a lot of these issues.

But there is no right answer. It's a choice. You know, Justice Kennedy, who was appointed by President Reagan, along with Justice Breyer, appointed by Clinton, has become a very passionate advocate of using other country's precedents to sort of look and see what we can learn from them. Justice Scalia has said this is outrageous. They have different traditions, different laws, and Judge Roberts was asked about this controversy and came down pretty clearly on the Justice Scalia side and said, you know, there are a lot of problems with using foreign law. You can sort of cherry pick which countries you like and which countries you don't, so I think there was an example of, you know, we learned something about what kind of judge he might be -- justice he might be.

BLITZER: And I learned something from the article that you wrote on Justice Kennedy in the current issue of "The New Yorker" that gets into this because Justice Kennedy has made this an important matter. Maybe we'll have a chance to discuss this a little bit more, but right now I want to take a quick break. Much more of our special coverage here in THE SITUATION ROOM. The confirmation hearings of John Roberts will resume when we come back.


BLITZER: Welcome back. We're in THE SITUATION ROOM. We're continuing to monitor the historic hearings for the Supreme Court Chief Justice of the United States, John Roberts. That testimony going along.

Let's bring in Senator Charles Grassley, Republican of Iowa, key member of the Judiciary Committee. Senator Grassley, thanks very much for joining us.

SEN. CHARLES GRASSLEY (R), IOWA: Good to be with you.

BLITZER: Have you learned anything new about this nominee that you didn't know before?

GRASSLEY: No, I think most of it is solidifying perceptions I had through his writings and previous decisions that I've had an opportunity to study. Plus maybe an hour I spent with him in July, when he came around for personal visits. Most of it is confirming and ratifying. And I guess what you'd expect if a person is intellectually honest, and he is, that, you know, he's going to tell you in public at a hearing like this the same thing he tells you in private, and he's going to be consistent with his writings.

BLITZER: Were you surprised that he said that he does believe the U.S. Constitution guarantees a right to privacy? GRASSLEY: No, not at all. Because I think that what you're looking for here is a judge that's got some respect for precedent, but not a precedent that can never be changed. Obviously, you know, we'd still have segregation of schools if it weren't for the Brown case overturning Plessy.

So what you're looking for is how does he look at when you would overturn precedent? And I think we got affirmation of what we thought, that he would only do that in the case of when -- shorter in precedent that it is, probably with a more divided court, would be more of a chance of overturning a precedent.

So, you know, he would then look at a case involving privacy with maybe how does it relate to the Griswold case, or with Roe V. Wade. And the extent to which shows cases were unanimous or devasion, and things of that nature.

BLITZER: All right. Jeff Greenfield has a question, Senator.


GREENFIELD: Senator, since you are noted for an economy of language, I want to ask you an impolite question about some of your colleagues. What is it about the Senate that persuades a senator -- and we've seen it on both sides of the aisle -- to take their 30 minutes of questioning and spend 20 minutes or more, in effect, giving speeches?

GRASSLEY: Television.

GREENFIELD: So, this -- you believe that it's all -- they are preening for the cameras. That this would not happen if it weren't for us?

GRASSLEY: Well, let's look at debate in the United States Senate in 20 years that we've had cameras. It's been extended over a long period of time, debate has. I mean, and more filibusters going on. More of them and longer filibusters. Same way in committee sessions.

And particularly something like this, a television is a median for senators as well as interest groups that find friends in their senators, in this case, ideological groups. It gives an opportunity to show that -- you know, get your cause out to the people, raise more money when you send out a fundraising letter.

BLITZER: Senator, Jeff Toobin also has a question for you.

TOOBIN: Senator, you're a veteran legislator and you've seen the Rehnquist court strike down about 30 laws over the past several years. And some people believe John Roberts would continue that trend. Are you concerned that the Supreme Court is being too aggressive in asserting its prerogatives over yours as legislators?

GRASSLEY: I guess just the opposite. I would see courts under Warren Burger go to the extent of usurping congressional power, expanding it and maybe diluting the federal form of government we have, through expansion of the commerce clause. And I would see the courts coming back.

Now, what -- the difference between the Warren Burger courts and the Rehnquist court would be that the judges were doing it. But that fed Congress to do more usurpation of state's powers through the commerce clause, diluting the Tenth Amendment. And I suppose really what I see the Rehnquist court is kind of bringing it back to some balance.

BLITZER: You voted for some Democratic nominees for the Supreme Court, most recently Stephen Breyer and Ruth Bader Ginsburg, Senator Grassley. Did you vote to confirm both of them?

GRASSLEY: Yes, I did. And I voted to confirm Souter and O'Connor. I voted for more people that have turned out to be liberal judges than people that have turned out to be conservatives.

BLITZER: So, based on your example, do you think the Democrats who are concerned about John Roberts, about Judge Roberts, should go ahead and give him the benefit of the doubt, as did you to President Clinton's nominees?

GRASSLEY: Absolutely. And if they're worried about balance in the court, they don't have anything to worry about. There's four liberals on the court now. There will be three conservatives when he's appointed. There's two moderates. When the next one is filled, if it's filled with a conservative, there will be four conservatives, four liberals, one moderate.

That's about as much of a balance as can you get. And I think they ought to be satisfied with balance. But most of them wouldn't be satisfied unless there were a 7-2 division in favor of liberals on the court.

BLITZER: Or, among, real, real conservatives, in favor of conservatives.

GRASSLEY: Well, I'd rather have a 7-2 conservative court. But I think -- here's the thing, the point I try to make when I give that quantifiable answer. And that is that Democrats or Republicans shouldn't worry about balance on the court or moderation. Because I think history takes care of that.

And it's pretty difficult for senators to judge how somebody is going to rule down the road 20 years or 15 years. Because you've got Senator Kennedy saying, you know, about Souter, that he was going to not be for Roe V. Wade. He's one of the biggest supporters of Roe V. Wade.

BLITZER: We're going to let you get back into that hearing, Senator Grassley. Thanks for spending a few moments with us.

GRASSLEY: You bet.

BLITZER: We'll take another quick break. Much more of our special coverage, the confirmation hearings of John Roberts. We're hear in THE SITUATION ROOM and we'll be right back. (COMMERCIAL BREAK)


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