Newsnight with Aaron Brown
Tuesday, July 19, 2005

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AARON BROWN, HOST: If confirmed, John Roberts may well be a critical vote—well, he’s certainly be a critical vote on a number of issues facing the court. We’re joined tonight by Andrew Breitbart, a longtime “Drudge Report” contributor. He also helped launch huffingtonpost.com and will soon be launching his own Web site and blog, as will everyone else in the country.

Kevin Russell is a partner at Goldstein and Howell, a law firm that specializes in Supreme Court litigation and a contributor to scotusblog.com.

Amy Goodman, host, executive producer of “Democracy Now,” a daily public radio and TV news hour on Pacifica Radio and PBS. We’re glad to see all of you.

If you could know, Ms. Goodman, one thing about this nominee, one thing, what would it be?

AMY GOODMAN, PACIFICA RADIO: Well, I do know two things. One is he ruled for the military tribunals, a big victory for the Bush administration last Friday. And the other is co-writing the brief under Kenneth Starr, the solicitor general.

BROWN: But what does that really tell you, though? He had a client. He made an argument for his client.

GOODMAN: Well, made a very strong argument. Not only…

BROWN: That’s his job as a lawyer.

GOODMAN: … saying that doctors can’t advise patients that they can have abortions, but also that there is not a constitutional right to abortion. That’s very serious. And when he was asked about it, because Kenneth Starr was out, John Roberts, I’m reading the quote, said “we’ll let the brief speak for itself. We’ll let the court reach its own conclusions,” that is to overturn Roe v. Wade.

BROWN: Right. But just to be clear, that was not a decision he made from the bench; it was a brief he wrote in support of a position his client, the president of the United States at the time, took.

Andrew, if you could know one thing right now, what would it be?

ANDREW BREITBART, FORMER DRUDGEREPORT.COM CONTRIBUTOR: I would like to know if DailyKos and the HuffingtonPost and other progressive Web sites, which are waging battle against Karl Rove, can handle two domestic battles at the same time.

BROWN: Really? That’s—because you’re that confident that this guy, that you know everything you need to know about this guy, that you don’t need to know any more about him?

BREITBART: Well, I had Googled…

BROWN: Let me push you differently, then. Would you have been more comfortable with a Janice Rogers?

BREITBART: Oh, absolutely, because I would have liked to have watched liberal Democrats take on another black conservative again the second time in a row, and to show that a lot of the assumptions about race in America are not right.

BROWN: That’s interesting, because that has in a sense almost nothing to do with ideology and a lot to do with politics.

Kevin, what do you want to know about Judge Roberts?

KEVIN RUSSELL, CONTRIBUTOR, SCOTUSBLOG.COM: I think I’d be most interested in knowing kind of how strongly he views the court’s obligation to continue to apply its prior precedents. He’s going to have the opportunity in a number of cases coming up very early to join people on the court who have expressed quite a bit of dissatisfaction with many of the court’s prior very important precedents.

BROWN: What are those cases?

RUSSELL: Well, one very early coming up will be the parental notification statute that’s challenged as not having an exception.

BROWN: New Hampshire?

RUSSELL: Exactly. And the question will be in that case, will he continue to follow the very recent decision, Stenberg, where the Supreme Court held that a similar law was unconstitutional because it didn’t have an exception for the health of the mother?

BROWN: All right, Amy, we tend to look at abortion as Roe v. Wade and nothing else, but in fact, there are—there is nuance to all of this. And the health/life exception, whether you’re talking about the battle over late-term abortion or what opponents call partial birth abortion, or parental notification and so on, is abortion the—in all its forms, the linchpin for the left here?

GOODMAN: Oh, I think there are a number of issues. But you do make a critical point. They don’t have to overturn Roe v. Wade to make it very difficult for women to get abortion on all these other issues, like the Planned Parenthood case that will be heard in New Hampshire around parental notification.

But military tribunals, this is a very key issue. The whole way that the Bush administration is holding prisoners and the idea that the Geneva Conventions don’t apply. This is also a very critical issue. And John Roberts actually has taken a position on it.

BROWN: Seriously, you think out in Nebraska tonight, mainstream America, is all that concerned about the enemy combatants rulings?

GOODMAN: I think what matters is the decisions of the Supreme Court. And it’s very difficult for people to make decisions in this country when the media doesn’t cover them extensively, really show us what is going on. And I think what’s most dangerous about those kind of cases, the military tribunals, is one that many people in this country identify with: What will happen to U.S. soldiers who are caught in other places in the world? That’s the precedent that is being set at Guantanamo.

BROWN: No, very possibly, and it’s a fair point. We don’t talk about that enough, that that’s the reason that argument is important beyond the pure morals of it. Andrew, let me give you the last word. Did the president of the United States please his base tonight in a way that you expected? And that after all, you guys won the election, is this the reward?

BREITBART: Well, I think that conservatives would have been happier with Brown or Luttig, but I think that this is—this is—reminds me of what David Brooks talked about in a column in “The New York Times,” in which he wanted Bush to pick somebody who’s smart, somebody who’s a great legal scholar. And I think that people are happy with that decision.

BROWN: And it will be interesting to see how it plays out. It’s always good to see all of you. Thanks for joining us tonight.

In a moment, Bill Schneider, the court, and the polling numbers. Because you’ve got to do that too. We take a break first. This is NEWSNIGHT on CNN.