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Senate Dems Frustrated by Roberts’ Refusal to Answer Questions on Wide Range of Topics

StorySeptember 15, 2005
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US Chief Justice nominee John Roberts was questioned for a second day at his Senate confirmation hearing for his views on a wide range of topics but repeatedly declined to answer questions by members of the Senate Judiciary committee, saying they could come before the Supreme Court.

Roberts is widely expected to win approval from the Republican-controlled committee next Thursday. Republican senators ended their questions late yesterday but agreed to let Democrats have another round today, and then conclude the day with testimony from outside witnesses. The full Senate will vote by the end of the month. If confirmed, Roberts will be the youngest chief justice in over 200 years.

We play excerpts of the hearing and speak with two legal experts, Ted Shaw of the NAACP Legal Defense Fund and Peter Irons author of “A People’s History of the Supreme Court.” [includes rush transcript]

For over eight hours on Wednesday, Roberts fielded Senators’ questions on an array of legal issues including the death penalty, privacy, affirmative action, international law and more. While he outlined his views on some issues, Roberts repeatedly declined to address numerous questions from Democratic committee members.

In contrast, several Republicans defended Roberts” answers and began congratulating him as though he were already on the court.

We begin with Oklahoma Senator Tom Coburn who caught the public’s eye when he became emotional on the first day of the hearings over the divisiveness between Democrats and Republicans. However, Coburn–a former doctor–has made controversial statements of his own. In July, he told the Associated Press, “I favor the death penalty for abortionists and other people who take life.” In 1992, a 20 year-old former patient filed a malpractice suit against him, charging that he sterilized her without her consent. At Wednesday hearing Coburn asked Roberts about foreign law.

  • Sen. Tom Coburn (R–Oklahoma) questioning John Roberts.

During the hearings yesterday, Democratic Senator Patrick Leahy of Vermont–the ranking member on the judiciary committee–raised the issue of capital punishment. His questions to Roberts came just hours before death row prisoner Frances Newton was executed in Texas. She was killed by lethal injection shortly after 6 o’clock last night despite widespread calls for a stay of her execution.

While Leahy didn’t specifically mention Newton’s case, he said investigations into various death row cases had revealed drunk and sleeping lawyers, underfunded and indifferent lawyers and a “startling number of innocent men” being sentenced to death who are later exonerated.

  • Sen. Patrick Leahy (D–Vermont) questioning John Roberts.

John Roberts has served in the administrations of George HW Bush and Ronald Reagan. He has argued more than three dozen cases before the Supreme Court. In one of them, he argued that the Supreme Court should invalidate a federal affirmative action program. Massachusetts Senator Ted Kennedy raised the issue of affirmative action at yesterday’s Wednesday’s hearing.

  • Sen. Ted Kennedy (D–Massachusetts) questioning John Roberts.

Democratic Senator Chuck Schumer of New York blasted Roberts for refusing to answer numerous questions before the committee.

  • Sen. Chuck Schumer (D–New York) questioning John Roberts.

Later on in the day, Wisconsin Senator Russ Feingold raised the issue of gay rights.

  • Sen. Russ Feingold (D–Wisconsin) questioning John Roberts.

Senator Feingold asked Roberts about his recent involvement in a case related to “enemy combatants” that was before the US Court of Appeals for the District of Columbia Circuit. In July 2005, the Court upheld the Bush Administration’s plan to convene military commissions to conduct trials of al Qaeda members accused of war crimes. Salim Ahmed Hamdan lost his challenge to this policy. Hamdan is a citizen of Yemen who was captured during fighting in Afghanistan and then held at Guantanamo Bay, Cuba.

Well yesterday, Judge Roberts was under scrutiny for deciding on the Hamdan ruling shortly before his interview by President Bush for the Supreme Court vacancy. Some experts on legal ethics have been divided about whether Judge Roberts should have recused himself from the case. Senator Feingold asked Roberts about this.

  • Sen. Russ Feingold (D–Wisconsin) questioning John Roberts.

We speak with two legal experts about the confirmation hearings.

  • Peter Irons, professor of political science at the University of California at San Diego, he is the author of numerous books, including “A People’s History of the Supreme Court,” and editor and narrator of “May It Please the Court.”
  • Ted Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: At Wednesday’s hearing, Senator Coburn asked Roberts about foreign law. This is an excerpt.

SEN. TOM COBURN: My question to you is: relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?

JOHN ROBERTS: Well, for the reasons I stated yesterday, I don’t think it’s a good approach. I wouldn’t accuse judges or justices who disagree with that, though, of violating their oath. I’d accuse them of getting it wrong on that point, and I’d hope to sit down with them and debate it and reason about it. But I think the justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read. I wouldn’t want to suggest that they’re not doing not doing that. Again, I would think they’re not getting it right in that particular case and with that particular approach. I would hope to be able to sit down and argue with it, as I suspect they would like to sit down and debate with me. But I wouldn’t suggest they’re not operating in good faith to comply with —

SEN. TOM COBURN: Can the American people count on you to not use foreign precedents in your decision-making on the Supreme Court?

JOHN ROBERTS: You know, I will follow the Supreme Court’s precedents consistent with the principles of stare decisis. And there are cases in this area, of course. That’s why we’re having the debate. The court has looked at those. I think it’s fair to say, in the prior opinions, those are not determinative in the sense that the precedent turned entirely on foreign law, so it’s not a question of whether or not you’d be departing from these cases if you decided not to use foreign law. And for the reasons I gave yesterday, I’m going to be looking…

SEN. TOM COBURN: I understand that, and I respect that, and I know that you can’t be in a position to make a judgment on that.

AMY GOODMAN: John Roberts responding to questions from Oklahoma Senator, Tom Coburn. During the hearings Wednesday, Democratic Senator, Patrick Leahy of Vermont, the ranking member on the judiciary committee, raised the issue of capital punishment. His questions to Roberts came just hours before death row prisoner, Frances Newton was executed in Texas, killed by lethal injection, shortly after 6:00 Texas time, despite widespread calls for [a stay of] her execution. While Leahy didn’t specifically mention Newton’s case, he did say that investigations into various death row cases have revealed drunk and sleeping lawyers, under-funded and indifferent lawyers and a startling number of innocent men, he said, being sentenced to death who were later exonerated. After break, we’ll go to that excerpt, and then we’ll have a discussion with our guests.


AMY GOODMAN: We turn now to Senator Leahy of Vermont, questioning Judge John Roberts about the death penalty, and this just hours before Frances Newton was executed in Texas, despite widespread calls for a stay of that execution. Senator Leahy and John Roberts.

SEN. PATRICK LEAHY: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he’s executed?

JOHN ROBERTS: Well, Senator, and this is the basis of the disagreement in Herrera. Herrera was not a case about actual innocence. It’s a question of whether you are entitled to bring a new claim.

SEN. PATRICK LEAHY: But listen to my question. The death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?

JOHN ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder? And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That’s what Herrera was about.

Now I don’t think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn’t be in prison, let alone executed. But the issue —

SEN. PATRICK LEAHY: Does the Constitution permit the execution of an innocent person?

JOHN ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time, to say at the last minute somebody who just died was actually the person who committed the murder, let’s have a new trial? Or do you take into account the proceedings that have already gone on?

SEN. PATRICK LEAHY: I’m looking for broad principles here. You said — let me read it again — “Does the Constitution require that a prisoner has the right to seek judicial review of a claim of newly discovered evidence, instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.” Is that your view today?

JOHN ROBERTS: Well, that’s what the court held in Herrera?

SEN. PATRICK LEAHY: I know. Is that your view today?

JOHN ROBERTS: Well, I’m not in the position to comment on the correctness or incorrectness of particular court decisions. That’s the court’s precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.

AMY GOODMAN: That’s Judge John Roberts being questioned by Vermont Senator, Patrick Leahy. We’re joined in the Washington studio by Ted Shaw, Director-Counsel and President of the NAACP Legal Defense and Education Fund, as well as Peter Irons, Professor of Political Science, University of California, San Diego. Peter Irons is the author of numerous book, including A People’s History of the Supreme Court, and narrator of May It Please the Court. I wanted to welcome you both to Democracy Now! and go, Ted Shaw, to you first about this issue of the death penalty and Judge Roberts. How much was revealed? What is Herrera?

TED SHAW: Well, first, it’s good to be with you, Amy and Juan. As we listen to that excerpt, I couldn’t help but think about how Judge Roberts went to great lengths, really, to avoid answering that question. The question simply was whether someone who could show innocence could have a review of a state court conviction in federal court, and he talked about Herrera, this particular case, and went to the question of whether someone can point to somebody who just died. Well, that’s not the question he was being asked.

Here’s the problem: I was up at the hearing yesterday for part of the day, and I think I heard Judge Roberts admit and acknowledge that there was a risk of executing innocent people. It seems to me if that risk is there, and we at the Legal Defense Fund know it’s more than a risk, then I don’t know how anybody could support the death penalty in this country. Now, that’s miles away from where Judge Roberts is or where he is going to be. We at the Legal Defense Fund recently demonstrated that there was substantial evidence to show that somebody who had been executed, not somebody who was found innocent while staying on death row, somebody who had been executed, was innocent, and we have the DA In St. Louis, Missouri, reopening an investigation to find out whether that’s so.

So, I was very troubled, and I have been troubled by Judge Roberts’s testimony, not only on the issue of the death penalty, but on many other issues. He’s very carefully parsing his language. He’s not answering questions. We knew that before we came in. This is gamesmanship, but this is too important a position. I think we, as the American people, ought to know what his views are. If his views have changed, he should say so. If they haven’t changed, he should say so.

JUAN GONZALEZ: Well, Ted Shaw, the questioning — this line of questioning was particularly relevant given the reality that Frances Newton was being executed that very day in Texas, a textbook case of what Patrick — Senator Leahy was referring to in terms of the questions raised about innocence in a capital murder — capital punishment case, yet Senator Leahy apparently was either oblivious to the situation or chose not to raise the Newton case as an example that would have driven the case home a lot more?

TED SHAW: Well, two things happening here, I think. One is that executions have become so commonplace, and Texas, of course, is leading the country in executions, that people just don’t even pay attention to them anymore for the most part. Now, yesterday’s execution was different, because it was a black woman who was being executed. Most people who are being executed are men, overwhelmingly, so it was a little bit different.

But the second thing I want to point out is that, yes, we are concerned about innocence, but we’re also concerned about a range of issues that arise in the imposition of the death penalty that go beyond the issue of innocence, that go to the issues of due process: Issues of race discrimination, issues of poverty, issues of whether we have an even playing field in taking people’s lives. And while the Texas case that we saw yesterday, ended up in an execution, could have been an example for Senator Leahy, I think that we don’t want to focus only on the issue of innocence, although, of course, that’s most powerful issue.

AMY GOODMAN: On the issue of foreign law, international law, let’s bring Peter Irons into this conversation. Your response to John Roberts’s response?

PETER IRONS: Well, it’s good to be with you, Amy and Juan, and the issue of foreign law is really interesting, because the decisions the court has handed down in recent years in which foreign law was cited, not as binding precedent, because of course, it isn’t, but as evidence of a trend in other countries away from practices like executing juveniles or criminalizing consensual sex.

These are cases in which the court is beginning to realize, Justice O’Connor, I think, leading among them, that we don’t live any more in an isolated world. This is part of a global system of law. International law has governed this country since its very founding. We have treaties that this administration says are not binding on us, for example, the Geneva Convention against torture and inhumane treatment of prisoners. And to the extent that other countries have advanced their understanding of the law in these fields, I think the Supreme Court should take account of those.

Now, as Judge Roberts pointed out, these were not the determinative decisions of foreign courts that the court based its opinions on, but I think that to exclude that very strong evidence of changing attitudes, changing trends, changing facts really robs the court of a source of law that it needs to take account of.

AMY GOODMAN: We are going to go now to the next excerpt. Judge John Roberts has served in the administrations of George H.W. Bush and Ronald Reagan. He has argued more than three dozen cases before the Supreme Court. In one of them, he argued the Supreme Court should invalidate a federal affirmative action program. Massachusetts Senator Ted Kennedy, raised the issue of affirmative action at the hearing. This is an excerpt.

SEN. TED KENNEDY: In the Grutter v. Bollinger case, the Supreme Court decided, very close, 5-4 decision, Sandra Day O’Connor, the deciding individual justice, the Supreme Court upheld the university practices that considered race as one factor in its admission decisions. No one is talking today about quotas. We’re talking about affirmative action as defined in this Grutter decision. The court found that there was a constitutional affirmative action program aimed at achieving a racially diverse student body.

In this decision, the court expressly gave great weight to the representation by military leaders — military leaders — that said a highly qualified, racially diverse officer corps is essential to the military’s ability to fulfill its principal mission and to provide national security. What weight would you give to that kind of a comment or statement or testimony by the military in considering any issue dealing with affirmative action?

JOHN ROBERTS: Well, the weight it was given was to help satisfy the test, because the court, as you know in Grutter, applied strict scrutiny, because it was dealing with considerations on the basis of race. And that required the showing of a compelling governmental interest to support that legislative action. And the testimony of the military officers, as the court explained, helped substantiate the compelling nature of the interest in having a diverse student body. And that was the weight that the court gave it.

There was, of course, the other case. There were two Michigan cases: the law school case and the university case, the Grats case, where the court did say that it looked too much like a quota in that case, because it was given determinative consideration, as opposed to being one of a variety of factors that is considered. And the two cases together kind of show where the court is coming out, at least in the area of higher education. The court permits consideration of race or ethnic background, so long as it’s not sort of a make-or-break test.

SEN. TED KENNEDY: Do you agree then with Justice O’Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities? And the reason — I’ve got 35 seconds left — that you might say: Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O’Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.

JOHN ROBERTS: Well, Senator, I think I can answer the specific questions you asked because, as you phrased the question: Do you agree with her that it’s important to look at the real world significance and impact? And I can certainly say that I do think that that is the appropriate approach without commenting on the outcome or the judgment in a particular case, that you do need to look at the real-world impact in this area and I think in other areas, as well.

AMY GOODMAN: Senator Ted Kennedy asking Judge Roberts questions about affirmative action. Ted Shaw, you’re President of the NAACP Legal Defense Fund. Your response to this interaction?

TED SHAW: Well, first, I was deeply involved in the Michigan cases. I was one of the faculty members at one time at the University of Michigan Law School and helped to draft the policy that was under attack and upheld. And I was also lead counsel for black and Latino students in the undergraduate case. And I want to say that this struggle is not over. That is to say that the issue of affirmative action will come back to the court. If Judge Roberts had said that he didn’t want to opine on it for that reason, he’s probably right. It will come back to the court at one time or another.

His answer, again, carefully parsed. He talked about taking account of real world impact, which seems to suggest that he might be on all fours with Justice O’Connor, but he didn’t make that commitment. You don’t know how he’s going to vote on the issue of affirmative action if it comes back to the court. We do know he has been a harsh critic of affirmative action in the past. He has talked about people who apply for employment and who get affirmative action consideration as unqualified at one time. Whether those are his views now or not, we’re not entirely sure, because he has refused to really directly address that. So, the problem we have had at the Legal Defense Fund is in determining what he believes now, but we know what he believed then. And what he believed then is part of an overall pattern of hostility to civil rights.

JUAN GONZALEZ: And Peter Irons, in terms of these questions that are raised because the nominee is so reluctant to be able to put forth his views, how then do senators — how do they make judgments as to whether he would make an appropriate person to be chief justice?

PETER IRONS: Well, I don’t think there’s any surprise in the way that Judge Roberts has responded to the questioning. The saying, it’s sort of like nailing jell-o to the wall. He tries very carefully and very skillfully to avoid giving any views that might predict the way he would vote on any particular issue or cases before the court. But this is all part of a very carefully choreographed exercise. It’s sort of like a kabuki play. Judge Roberts has been instructed, and I think would on his own anyway, carefully avoid giving his views in any substantive way. He is making the most general kind of comments that I think people on both sides of an issue could agree with, carefully avoiding what happened during the confirmation hearings, for example, for Judge Bork, which is probably one reason why no nominee since then has ventured to give his or her views on issues that might come before the court.

But in another sense, I think that the members of the committee are also playing their roles in this play. The Democrats are trying very hard to score points that resonate with their constituencies, with women, gays and lesbians, African Americans and other minorities, Hispanics. And the Republicans, as Senator Coburn showed, are responding to their core constituency, these very conservative, many of them evangelical Christians, who want the Court to change direction radically.

Of course, Judge Roberts is almost in the exact mold as Chief Justice Rehnquist, not only as his former clerk, but in many other ways. So, his addition to the court, the only significant factor, I think, as was pointed out, he would be the youngest Chief Justice since John Marshall, who was only 48 when he joined the Court, and so, the prospect is that he would sit on the court for quite a long time. And during that time, of course, there will be new justices appointed, and we need to find out what the trend is going to be, whether the candidates will be somewhat in the mainstream or whether they will be the kind of ideologues that the President and his administration want on the court.

TED SHAW: If I may —

AMY GOODMAN: Yes, Ted Shaw.

TED SHAW: If I may, just to amplify on that, I think we are getting, as best we can tell, a Rehnquist for Rehnquist. The key seat, of course, is going to be the O’Connor seat, in terms of the swing vote, but when we say we’re getting Rehnquist for Rehnquist, what we’re seeing is somebody who is replacing a justice or chief justice who when he came to the court was an outlier. So, it’s a mistake to forget that Chief Justice Rehnquist was very, very conservative, and I think that John Roberts, at best, is in that mold.

AMY GOODMAN: I wanted to play just an excerpt of Wisconsin Senator, Russ Feingold, late in the day yesterday raising the issue of gay rights with Judge John Roberts.

SEN. RUSS FEINGOLD: Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment.

JOHN ROBERTS: I don’t know if that’s an issue that’s going to come before the courts. I don’t know if Congress has taken that step yet. And until it does, I think that’s an issue that I have to maintain some silence on. I think, personally, I believe that everybody should be treated with dignity in this area and respect.

AMY GOODMAN: Judge Roberts responding to a question on gay rights. Later we’ll play New York Democrat, Charles Schumer, expressing frustration on the lack of answers of Judge Roberts, and we’ll also look at prisoners’ rights and the Geneva Conventions. We’re taking a look in this hour at the responses of Judge John Roberts, with Ted Shaw, President of the NAACP Legal Defense Fund, and Peter Irons, author of A People’s History of the Supreme Court.


AMY GOODMAN: We continue this hour looking at Judge John Roberts. Day four today of the confirmation hearings that would, if Judge Roberts succeeds in being confirmed, make him the youngest Supreme Court Justice of the United States in over 200 years. Yesterday New York Democratic Senator, Chuck Schumer, expressed great frustration about the lack of answers to the senators’ questions.

SEN. CHUCK SCHUMER: But when you add it all up, you are being less forthcoming. I know you’re doing what you feel is right, but you’re being less forthcoming with this committee than just about any other person who has come before us. You are so bright, and you know so much, but there’s another aspect to this, which is letting us know what you think. And you have set up your own little construct. It’s not really the Ginsburg precedent, or it isn’t Canon 5, which you cited repeatedly at your Court of Appeals hearing.

And so let me ask you this one question and then you can answer it in general: Has there been any judge that you’re aware of who has had to recuse himself or herself because of what they said at a confirmation hearing? Can you name for me a judge who you think was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?

JOHN ROBERTS: I think because the justices have followed the approach that I am following — and as I said, I’ve gone back and read every one of the transcripts for the justices. They have avoided commenting on whether they think decisions were correctly decided or not.

AMY GOODMAN: Judge John Roberts responding to Senator Schumer. Juan?

JUAN GONZALEZ: Well, just one week before his nomination to the Supreme Court in July, John Roberts was part of a three-judge panel that handed Bush an important victory in the so-called war on terror. It ruled that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner of war status as outlined by the Geneva Conventions.

AMY GOODMAN: The case was brought by Salim Ahmed Hamdan, a citizen of Yemen, who was captured during fighting in Afghanistan, the government says, and then held at Guantanamo. At Wednesday’s hearing Roberts came under scrutiny for ruling on the Hamdan case by Wisconsin Senator Russ Feingold.

SEN. RUSS FEINGOLD: You interviewed with the Attorney General of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?

JOHN ROBERTS: Yes. The specifics of the details I discussed in the response to the committee’s questionnaire.

SEN. RUSS FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn’t that right?

JOHN ROBERTS: I don’t remember the exact date of it. I know it was shortly before that, yes.

SEN. RUSS FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the Vice President and the White House counsel before the decision in the Hamdan case was released. Isn’t that correct?

JOHN ROBERTS: The decision was June 15th.

SEN. RUSS FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?

JOHN ROBERTS: May 3rd, yes. Well, whatever it was, I don’t remember the exact dates, but —

SEN. RUSS FEINGOLD: You’ve had interviews with those individuals —

JOHN ROBERTS: In the Senate —

SEN. RUSS FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn’t that right?

JOHN ROBERTS: I’m relying on the —- if that’s what I said in the questionnaire, yes. I don’t have an independent recollection -—

SEN. RUSS FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?

JOHN ROBERTS: I did not, no.

SEN. RUSS FEINGOLD: Mr. Gonzales’s advice to the President concerning the Geneva Conventions was an issue in the case. Isn’t that right?

JOHN ROBERTS: I don’t want to discuss anything about what’s at issue in the case. The case is still pending and pending before the Supreme Court.

SEN. RUSS FEINGOLD: Well, how about this one? President Bush was named a defendant in the case. Right?

JOHN ROBERTS: Yes, in his official capacity.

SEN. RUSS FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?

JOHN ROBERTS: No, I didn’t —- that was not my testimony. The opinions in the D.C. Circuit -—

SEN. RUSS FEINGOLD: Oh, so your testimony now that no work on that decision took place after July 1?

JOHN ROBERTS: Opinions in the D.C. Circuit are complete and circulated to the panel a week before they’re released. That was my — the conclusion of when work was complete. And again, I wasn’t the author of the opinion. It would have been a week before it was released.

SEN. RUSS FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?

JOHN ROBERTS: I don’t recall, Senator, and —

SEN. RUSS FEINGOLD: But when was the issue of whether you should recuse yourselves from this case? When did that first come to your attention?

JOHN ROBERTS: I saw — was made aware of an article. I think it was an article. I don’t remember when that took place. Whenever the article was published. And then I understand there was — legal opinions on the other side were requested by, I believe, the chairman, and I know that those were published, as well.

SEN. RUSS FEINGOLD: You don’t recall when the matter first came up? I would think it would be something you would remember, when somebody suggested you should recuse yourself from the case.

JOHN ROBERTS: I don’t remember the date of the —

SEN. RUSS FEINGOLD: How about the approximate time?

JOHN ROBERTS: I think it was sometime in July or —

AMY GOODMAN: Judge Roberts being questioned by Wisconsin Senator, Russ Feingold, about an issue of a conflict of interest. The judge ruling on this three-judge panel in favor of the Bush administration, handing President Bush a critical victory in the administration’s execution of the so-called war on terror. Peter Irons, you’re author of A People’s History of the [Supreme Court], long-time law professor. Do you think there’s a conflict of interest here? As he was making this ruling, he was meeting with Vice President Dick Cheney, he was meeting with Andrew Card, he was meeting with Attorney General Gonzales, who is one of his top deputies, was arguing this case before the Supreme Court, and Judge Roberts was being considered for the highest job in the land?

PETER IRONS: Well, this is one of the most disturbing aspects of the whole nomination. I have just finished a book called War Powers: How the Imperial Presidency Hijacked the Constitution. And a major theme in the book is the amazing increase in executive power in this field, particularly the administration’s claims, really, that it’s above the law in dealing with people who are alleged to be enemy combatants. And I think that Judge Roberts, by participating in the selection process for his nomination, while this issue was pending before his court, and as the excerpt showed, it got down to details of which day the opinion was completed, and so forth, but he wasn’t really forthcoming about this basic issue, that is, of war powers.

I think it’s quite clear that on the court he would be, as he has been all along, from his early service in the Bush administration and before that the Reagan administration, an advocate of almost unlimited executive powers in the field of foreign policy and war powers. And I think that that would be consistent, of course, with the position of Chief Justice Rehnquist. It wouldn’t change the outcome. But the question of whether he should have recused himself is a significant issue, and I don’t think his answer was very responsive to the series of questions from Senator Feingold.

TED SHAW: Amy, I just add that —

AMY GOODMAN: Ted Shaw, President of the NAACP Legal Defense Fund.

TED SHAW: Lawyers and judges have ethical responsibilities not only to avoid actual conflicts but to avoid perceived conflicts of interest. And it doesn’t take a rocket scientist to see that somebody who wants to be on the Supreme Court may appear to curry favor, even if they actually are not intending to do so, with the President, with the White House, in going a certain way on a decision and being a good soldier. So, I think it’s a serious, serious question that was raised, and as Peter said, I don’t think that it was really answered adequately.

JUAN GONZALEZ: I’d like to ask Peter Irons: One of the areas in which Judge Roberts did give some indication of his views was on an issue that really is affecting scores and scores of communities all over the United States is the issue of eminent domain and the recent court decision that the government has the right to take people’s properties for private developments or for private owners, and of course, it’s a decision where, amazingly, the more liberal members of the court sided with the government, and the more conservative members of the court were in the minority on the issue, and Judge Roberts did seem to at least begin to give some perspective of what his views might be on this.

PETER IRONS: Well, this is a fascinating issue of the takings clause of the Constitution that private property may not be taken without fair compensation, but — and as you point out, the liberals on the court upheld the powers of government. This is an area, of course, that raises federalism issues, because most of these takings are done by states and local government. And I think that Judge Roberts, to the extent that he did express his views on this, would most likely side, I think, with those who feel that the government has overreached itself.

One of the interesting things about this decision, the Kelo case, is that the public response to it was overwhelmingly negative, that the Court had done something that undermined every property owner’s right, every homeowner’s right to hold their property and use it, and that government shouldn’t just gobble it up in the interest of corporate development and expanding their tax base. So, I think that perhaps as Judge Roberts’s answers to these questions indicated, that he is a little more sensitive to the impact of the court’s decisions on public opinion.

TED SHAW: But Juan, if I may, on this issue, though, this is one that’s very confusing to a lot of people. And here’s why you see some of the more quote, “liberal,” end quote, justices going the way they did in this case. This is about a movement by conservatives to say that any regulation of any kind, whether it’s environmental, whether it’s civil rights, is a taking of property. So, for example, somebody owns a building and they rent out housing in it, the Fair Housing Act says you can’t discriminate. Well, that might be a taking. That’s why you see liberals going that way, and conservatives are going another way, because what we have here is an underlying question that confuses a lot of people.

On both sides of the fence, at the end of the day, a lot of people are upset about the opinion. At the Legal Defense Fund, we represented poor, minority people who have had their property taken. And on this one, I think that Justice Thomas was absolutely correct. It’s poor and minority people who will be the most vulnerable, although everyone is at risk here. But there’s an underlying ideological struggle that I think most people don’t understand about regulation.

AMY GOODMAN: As we come to the conclusion of this hour, we’re also today coming to the conclusion of this confirmation hearing. If Judge Roberts is confirmed, he will be the youngest Chief Justice of the United States in more than 200 years. I wanted to ask each of you for your thoughts on what this means, and if you were sitting there as one of the senators, what questions you think would be critical. It might surprise a number of people that this — these hearings have not been more contentious. Ted Shaw, President of the NAACP.

TED SHAW: Well, NAACP Legal Defense Fund; we’re separate from the NAACP. But the question, I think, is an opportunity for me to point to a report that the Legal Defense Fund has issued. It’s available on our website, which is www.NAACPLDF.org. And the questions that I would ask if I was on the Senate would go to his views, whether all of these views — this fellow has a record, an extensive record. He’s very bright, but his views and what they are now. Now, they’re trying to get at that. The problem in the Senate is that often we don’t get the kind of penetrating follow-up and cross-examination. Part of it is a problem of format. But part of it, I think, is the kind of nature of the political game. With respect to the significance of this appointment as Chief Justice, he’s going to be there for a long time, assuming good health. And he’s going to guide the Court. He’s going to have impact on the judiciary. But people grow, they change, and we don’t really know who he’s going to be ten years from now, five years from now, much less thirty years from now. All we know is the record that he has now. I would not let him get away with the statement that the views that we have seen him articulate were only the views of his bosses. These were clearly his views. And I think that they have to keep going after him on that. It’s just about over now. Everybody thinks he’s going to be confirmed.

AMY GOODMAN: Let me ask Peter Irons. Peter Irons, we only have 15 seconds, your response.

PETER IRONS: I think that the real question, assuming that he’s confirmed, is: Is he going to be more in the mold of Chief Justice Rehnquist or will he evolve in his views? People thought that Justice Harry Blackman and Justice Anthony Kennedy were going to turn out to be predictable conservatives, but their views evolved. They became more aware, as Judge Roberts said, of real world issues. And to the extent that he can remain open to those kinds of factors and not be locked into a sort of ideological closet with Scalia and Thomas, there is some hope in my mind that over time, he will —

AMY GOODMAN: Peter Irons, I’m going to have to cut you off. Thanks for joining us.

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