The Roberts Hearings, Day Two

7:50 – Durbin is done. Specter gavels us to a close for the day. He

7:50 – Specter gavels us to a close. They will start at 9am tomorrow.

7:48 – Durbin returns to gender. Roberts – the tiers are fairly well established as an approach to addressing discrimination. Gender is in the middle tier because the Court believes there are times classifications can be justified — e.g., the all-male draft.

7:45 – Durbin asks about the torture memos. Is a law unconstitutional if it conflicts with an Executive Order? No. The President has an obligation to uphold the Constitution. His determination can in an appropriate case be tested in Court. The ultimate arbiter is the judiciary.

7:40 – Durbin turns to executive power. What will show “you are willing to stand up to this president” if he goes too far? Roberts – look to his opinions and his briefs as a lawyer and his history in representing clients. The rule of law is his only client. (It’s a nice moment.)

7:37 – Roberts says that in Wallace v. Jaffree didn’t address the constitutionality of a pure “moment of silence.” (He goes out of his way to make this point, suggesting that he would uphold such a policy; the S. Ct. declined to review the question a few years ago.)

7:36 – Roberts says he hasn’t expressed his views on the Establishment Clause in any forum. Durbin then doesn’t ask him to do so, but instead moves on.

7:35 – “The results [under the Establishment Clause] are sometimes I think a little difficult to comprehend.” (This is a pretty telling statement.)

7:32 – Durbin asks about the Lemon test for the Establishment Clause. Roberts – the Lemon test “is a survivor. There is no other way to put it.” The SG’s brief in Lee v. Weisman focused on coercion; they lost 5-4. A Justice has said that Lemon survives because no one can come up with a better alternative, “and there may be something to that.” Both a benefit and a disadvantage of the Lemon test is that it is very sensitive to the facts. He cites the 10 Commandments decisions, “and one Justice believes both of those are rightly decided.”

7:31 – Durbin asks whether the Reagan Administration’s position in Bob Jones was correct. Roberts says no, it was the wrong position. (This is a rare moment of clarity.)

7:30 – Durbin asks about the Bob Jones case and its eligibility for a tax exemption. He wants to know what Roberts’ role was. He says that he was barred from participating because he had just been a law clerk. Durbin says he has memos indicating Roberts’ participation; they will talk about it tomorrow.

7:30 – Durbin says that Robert has distanced himself repeatedly from the Reagan memos. He asks whether Roberts ever “stood up” to his colleagues in favor of the underprivileged. Roberts says that there were internal disagreements, but Durbin doesn’t press the issue. (Again, this seemed like an interesting potential line of questions.)

7:23 – He asks for Roberts’ view on the death penalty, in the context of the Herrera case in which the SG’s office filed a brief signed by Roberts. Roberts – any case involving the death penalty is different. He hasn’t considered the issue as a judge. He knows the magnitude of the scrutiny and concern that all the Justices bring to capital cases. No one wants an innocent person executed.

7:21 – Durbin is talking about Linda Greenhouse’s Blackmun biography. He’s asking about poor Joshua in DeShaney. Roberts is nodding sympathetically. No questions. He now turns to the death penalty.

7:20 – Ok, Specter’s staff lied. Durbin is up.

Cornyn is going to be last. (No one has told Sen. Durbin, who is getting ready to ask questions.)

7:15 – Cornyn asks — over the course of around 5 minutes — whether there are specific bases for Congress’ power to legislate; that there are some limits. Roberts agrees. He says that Lopez and Morrison have to account for Raich, which pointed to a 218-year history of commerce cause legislation. (This actually seems the clearest answer relating to the hapless toad; Roberts seems to harbor no real doubts about current Commerce Clause jurisprudence.)

7:09 – Roberts says stare decisis is not an inexorable command. There have been significant overrulings – e.g., Brown. Cornyn – “When you say that Roe v. Wade is entitled to stare decisis you were saying just that.”

7:07 – Cornyn and Roberts are going back and forth through territory already covered and platitudes. Roberts agrees that judges shouldn’t be results oriented.

6:52 – Senator Cornyn is up. He’s talking about cameras in the courtroom, agreeing with Feingold that they are appropriate to let Americans know about what is going on in courts. He wants Roberts help in lowering costs and shortening delays.

6:43 – We’re going into a 5 minute break.

6:40 – Schumer is talking about Commerce Clause hypotheticals. The manufacturer of botulism without materials that cross state lines. Roberts says that fits the rule of Raich because of the interstate effects of the product.

6:35 – Roberts points out the dilemma Schumer is trying to put him in by talking about cases at all.

6:30 – Schumer talks about the importance of a strong federal commerce power post Katrina. Roberts says that he has no agenda to overturn Wickard. (This is a tough judgment call for Roberts. He doesn’t want to answer because the question has been raised so recently in Raich.)

6:28 – Schumer asks about Wickard and the Commerce Clause. He asks whether purely local activities with a substantial interstate effect are within the commerce power. Roberts says that is Wickard’s holding, as reaffirmed in Raich. He won’t say whether he agrees with Raich. Schumer says that he should answer whether he believes Wickard is rightly decided.

6:26 – Schumer asks if Roberts can in hindsight identify any policies the Reagan Administration supported are unwise. Roberts – there are 80,000 pages of memos and he hasn’t gone back and evaluate it. He addresses busing and quotas; you can oppose those but be in favor of civil rights. (Schumer gives up on the line of questioning, which is unfortunate; it seems like it could have been productive.)

6:25 – Schumer says Roberts is not answering enough questions. He says he is troubled with Roberts’ answers on civil rights. He says some of the Reagan memos suggest Roberts was hostile to civil rights and insensitive. He asks if Roberts regrets the tone and phrasing of some of the memos. Roberts says that the tone was appropriate for a memo from him to Fred Fielding.

6:21 – Schumer asks about how you identify the scope of 14th A. liberty. Roberts says history, traditions, and practices, with a sensitivity to the judicial role, as developed in the Court’s precedents. Begin with the precedents, applying stare decisis. All the Justices recognize you have to be especially careful.

6:20 – Schumer is locking down Roberts, repeating his earlier answers on Griswold and 14th A. privacy.

6:15 – Schumer is asking about judicial independence. Roberts – criticism is fine and healthy; personal attacks are inappropriate. Schumer wants Roberts to go much further to deplore attacks on the judiciary. Roberts says it is a free country for people to be critical, and he will defend the judiciary.

6:13 – Schumer is up. “You will be Chief Justice.” (No, “If you are confirmed . . . .”).

6:11 – Graham: “What would you like history to say about you.” Roberts: “I’d like them to start by saying that I was confirmed.” Roberts says he would just like history to say he was a good judge. (Graham was not nearly as impressive today in my view.)

6:09 – I went downstairs to watch the proceedings. 90% of the press seats are empty. 50% of the public seats are empty. The Senators other than Specter and Leahy who have asked questions are gone.

5:46 – Lindsay Graham is up. He is reading an excerpt from the favorable evaluation of the National Association of Women Lawyers. He then wants to talk about “life” – i.e., who Roberts is a person. I’m going to the bathroom.

5:42 – Feingold turns to Section 1983 civil rights actions. He specfically asks for the first time a question about Roberts’ role in determining that the U.S. would participate in a case – Wilder. Roberts says that he doesn’t recall particularly; the decision was the SG’s. Roberts points out that he has represented both sides in cases involving implied private rights of action.

5:39 – Roberts reiterates that he was not “shaping Administration policy” in various memos; “it was my job to promote the Attorney General’s view.” Feingold says that he’s very surprised Roberts doesn’t have a view on whether the amendments to the Act have been successful and better than requiring proof of intent. (This sounds to me silly – no one thinks that Roberts is an expert on this issue.)

5:36 – Feingold returns to the 1982 amendment to the Voting Rights Act. Feingold asks whether the effects test is a better one under the Act. Roberts says he hasn’t had cause to consider the question. Feingold is now just reading a mini-speech about the effects test.

5:33 – Feingold asks about Roberts’ interview while Hamdan was pending. He starts with whether recusal came up an issue. He says he can’t talk about because the case, and in particular a motion to recuse, are pending. Roberts gets a bit animated regarding how his hands are tied.

5:30 – Feingold asks about Hamdan, and asks why a constituent would say that Roberts shouldn’t be on the Supreme Court. Roberts says he can’t discuss a pending case under the canons of ethics.

5:27 – Feingold asks about Hamdi, asking which of the opinions in the case best reflects his view. Roberts declines to answer other than to say that the Jackson Youngstown concurrence is controlling. Feingold asks the same question again; Roberts gives the same answer.

5:25 – Feingold asks if there are things in 50-60 years ago we’ll look back on with regret regarding the response to Sept. 11. Roberts says he is sure there are but declines to comment on particulars. He declines to answer on rendition. He agrees that lengthy detentions of individuals without charges are “troubling,” but says no more.

5:23 – Roberts – Korematsu hasn’t been formally overruled, but is recognized not to have precedential force. It is hard for me to comprehend that it would be acceptable these days. It’s on a par with Plessy.

5:21 – Roberts – the Bill of Rights doesn’t change in times of war and crisis. The demands may be different and people appreciate that. It is always a challenge in times of war and stress. The obligation of the courts to calmly poise the scales of justice.

5:19 – Feingold is talking about Sept. 11. Roberts says he was one of the last people to learn about the attacks. He was in a hearing before a Special Master for several hours in DC. Afterwards, the streets were all blocked off. A police officer explained what happened. Feingold wants him to think more broadly.

5:18 – Feingold says that “Roberts will be” — i.e., without expressing doubt about confirmation — “the principal decisionmaker” on cameras in the Court.

5:17 – Russell Feingold is up. He asks about televising S. Ct. proceedings. Roberts says that he wants to talk about the members of the Court. He notes that the Court occassionally has released audio in big cases after the argument.

5:15 – We’re back. We’re going to go to 7:30 instead.

Ok, a real break.

4:47 – Sessions says that Roe is wrong and many believe it was wrongly decided.

4:44 – Sessions turns to Roe and says that he understands that Roberts would confront the issue when it comes up. Roberts says that is right.

4:38 – Roberts is reviewing S. Ct. procedure – briefs, argument, conference, opinion writing, revising. Roberts talks long enough that Sessions interrupts and says, “at some point there is a decision.” Sessions says that all of the process shows why Roberts shouldn’t discuss –i.e., prejudge–a particular case. (This seems to me a very good way of making the point.)

4:35 – Roberts just said twice that the Supreme Court gets around 10,000 petitions, which is over by around 2,500. Whoops. Remember, he’s going to be the Chief Justice of the United States, not Chief Justice of the Supreme Court.

Break canceled again. The vote hasn’t started.

4:31 – Sessions feels that Roberts hasn’t sufficiently explained what a trial transcript is. I still think he will vote “yes.” Roberts says he is often persuaded in the course of the briefing.

4:30 – Sessions asks for a civics lesson on what an appellate judge does. How judges don’t set policy. Roberts obliges.

4:29 – Sessions returns to comparable worth. Roberts confirms that he has always supported equal pay for equal work; the question addressed in an earlier memo was equal pay for comparable work (e.g., a secretary paid as much as a truck driver).

The break was moved because there is a Senate vote at 4:30.

4:25 – They are discussing the 1982 amendment to the Voting Rights Act and the effects test. Session notes that the Administration’s position that effects did not violate Section 2 of the Act reflected the SCt’s ruling in Mobile v. Bolden.

4:19 – Senator Sessions is up. He is reading a letter of support for Roberts.

4:15 – Whoops, break put off by 15 minutes.

4:14 – Roberts says that there is a right to be let alone, but declines to get into its application to end of life issues.

4:12 – We turn to religion. There is a terminological debate about “absolute separation of church and state.” His faith and beliefs are irrelevant.

4:05 – We arrive at the hapless toad. Roberts says he wrote because of a conflict with the Fifth Circuit, and that he pointed out that there were other grounds potentially for sustaining the application of the Endangered Species Act. (This is the argument I made in a Nomination Blog post.) He doesn’t commit to how he would have decided the issue on the merits.

4:01 – Feinstein turns to the Bray brief signed by Roberts. He notes that S.Ct. agreed with the Administration 6-3.

4:00 – Roberts says it gets respect “like any other decision of the Court,” an interesting formulation that is far afield from Senators’ earlier references to “super-duper ultra precedent.”

4:00 – Roberts agrees that settled expectations are important. Roberts agrees that Feinstein is, in fact, reading from the opinion in Casey.

3:58 – Feinstein returns to Roe, Casey, and stare decisis. This is Roberts’ chance to walk back anything he previously said about Roe. Roberts says that Casey itself is precedent (including in its determination with respect to workability) — “a precedent on precedent” — entitled to respect. He won’t comment on whether it is right or wrong.

3:55 – Feinstein asks about privacy. She asks if the implied right to privacy applies to the beginning and end of life. Roberts says it isn’t necessarily “implied”; it is “part of the liberty” under the Due Process Clause. The scope of the right he won’t talk about.

3:50 – Roberts addresses the homemakers / lawyers memo. He explains that it was a lawyer joke, not homemakers – that there are too many lawyers. His life, he explains, establishes that he obviously believes in equal rights for women. [Corrected, thanks!] The tone of the memos was in the nature of that office.

3:50 – Feinstein is going through excerpts of various memos that she thinks suggest Roberts is inattentive to gender discrimination. Roberts – he has always supported, and supports today, equal rights for women, particularly in the workforce. He was pleased with a report saying that he always treated women lawyers with respect and dignity, and made accommodations with “life/work issues.”

Scheduling notes. There will be a break at 4:15. We will finish tonight at 6:30.

3:47 – Senator Feinstein is up.

3:43 – Dewine turns to the Spending Clause and South Dakota v. Dole. He asks if that is a model for the ADA. (Dewine doesn’t note that many of the ADA’s protections are actually provided on the spending authority under the Rehabilitation Act.) Roberts talks a spending clause case in which he disagreed with Judge Sentelle, but doesn’t get into more than a recitation. Roberts doesn’t hint at cutting back spending clause jurisprudence.

3:40 – Roberts says that deference to findings is very important as a matter of institutional competence. The question arises in the context of a pro-civil rights question regarding Garrett. (But the rubber will hit the road when Roberts, I predict, votes in favor of the view that the federal partial birth statute is constitutional in light of the congressional findings underlying it.)

3:36 – Dewine turns to the Garrett sovereign immunity case. He says that the Court ignored the relevant congressional findings. (This is an interesting example of how congressional power is a non-partisan principle in the hearings. By analogy, it also illustrates why judges who disparage presidential powers won’t get nominated to the Supreme Court, given that it is Presidents who do the nominating.)

3:32 – Dewine says that political speech deserves more protection than pornography. Roberts says that is consistent with the Court’s holdings.

3:30 – A relatively uninteresting exchange (actually, mostly a speech by Dewine) about speech continues.

3:20 – Dewine turns to the First Amendment. He think that religious and political speech is being under protected.

3:17 – Senator Dewine is up and asking about appointments to the FSIA court. He is concerned about the lack of oversight of the Court. Roberts volunteers that the “departures on the normal model” in that Court put “a premium on the individuals involved” when it comes to the appointees.

3:15 – Kohl asks if there are examples of positions Roberts no longer believes in as he has grown older and matured. Roberts says term limits is one example. In 80,000 pages of documents, he doesn’t know if there are particular issues; he has changed and so has the law. Only a handful have attracted attention. His whole body of work hopefully will leave a favorable impression. His tone would have moderated from when he was “25 and had all the answers.”

Liz has a blog round-up below.

3:10 – Kohl turns to jurisdiction stripping. Roberts says earlier memos were in furtherance of his assignment to argue that stripping proposals were constitutional. His views that stripping is constitutional “probably had something to do with his proximity to his advocacy.” Roberts suggests he still thinks they are bad policy. He doesn’t know whether he would still think they were constitutional, and doesn’t think it’s appropriate to discuss in detail.

3:09 – Kohl asks about legal services for the poor. Roberts says it is a serious issue, and there is an obligation to provide pro bono services – even with respect to estate, tax, and corporate work (eg, setting up nonprofits). People need to be a little more creative. People in the middle are left without legal services; the poorest and richest have it.

3:05 – Roberts jokingly disavows his endorsement of judicial term limits, but then says that the issue deserves serious consideration. He is more sensitive to concerns about a definite cut-off point. Ultimately he does not support term limits because litigants could shape their strategy based on when judges would be leaving the bench.

3:05 – Kohl asks if the Roberts would be pleased if a woman was nominated to replace Justice O’Connor. Roberts clarifies that Kohl is asking about the other seat, not his; he doesn’t think it’s appropriate to comment on the President’s nominations other than to endorse his past one.

3:05 – Kohl says that Roe follows from Griswold. Roberts says he can comment on Griswold because it won’t come before the Court. Roe will.

3:02 – Is Griswold settled precedent? “I agree with the Griswold Court’s conclusion.” Since then the Court has grounded the right in the liberty clause, not the penumbras. That view is “consistent with the subsequent development of the law.”

3:00 – Kohl asks whether Roberts is disavowing the briefs and memos he signed in the Reagan Administration. Roberts says it is 25 years later. He would have to address the issues anew. He also is a judge; he would come to it with an open mind on the arguments, the record, and precedents. The precedents have changed dramatically. Kohl says it would be helpful to know the issues on which Roberts has changed, but it isn’t a question.

2:58 – Kohl turns to the Rust brief. Roberts – it was the Reagan Administration’s brief. He was one of 9 lawyers, expressed in 4 cases.

2:58 – Roberts says reasonable people can disagree about Roe. And he can respect those who hold contrary views.

2:57 – Kohl asks whether there is a particular role for Roberts for improving the ability to respond to people who live under those circumstances. Roberts – the courts are passive institutions; they don’t bring cases; we don’t enforce or make the law. Cases will arise from Katrina, many federal, and the obligation of the judiciary is to provide a forum for fair decisions according to the rule of law.

2:55 – Kohl turns to Katrina and its effects on the poor. What role would Roberts play in righting the wrongs caused by Katrina and moving the nation forward towards equal rights. Roberts says that the core commitment is “equal justice under law”; the “rule of law” is the most important thing the Court can uphold. The best thing the courts can do is provide a level playing field.

2:50 – Kohl says it was a dramatic shift, and Roberts agrees. Roberts says that Brown is more consistent with the original understanding of the Fourteenth Amendment than was Plessy.

2:47 – Senator Kohl is up. Kohl asks essentially whether a reserved judge would have ruled in favor of the Brown v. Board plaintiffs. Roberts says yes. He says that the broad language of the Fourteenth Amendment was purposeful, and can be read as such consistent with the orignal understanding. Roberts is pretty impressive talking about the particular lawyers who argued Brown – John Davis and Thurgood Marshall – and the particular cases they cited.

2:43 – Kyl asks what Roberts learned from Judge Friendly and then-Justice Rehnquist. For Friendly he says, devotion to craft. Friendly took pleasure in people not knowing whether he was conservative or liberal. (This comment may get lost but seems very interesting.) Friendly also had an “essential humility about him.” For WHR, he tells a funny story about writing crisply and efficiently. The Chief told him to put the substance of a JGR draft into footnotes and put in other substance. After the revision, WHR said, looks good but let’s drop the footnotes. (Roberts was interesting in how little he said about WHR compared to Friendly.)

2:40 – Kyl asks about Roberts’ work on a capital case. Roberts says he doesn’t want to overstate his role, and that he just pitched in. Kyl asks about the time that Roberts argued on two days notice at SCOTUS then argued the same day in the D.C. Circuit. Roberts explains that it did happen that way. It’s a pretty impressive story. Asked how he did, Roberts says “the courts got it right in each case.”

2:35 – Kyl says that each Senator has a soapbox, and that his is the citation to foreign law. Roberts notes a debate between Scalia and Breyer on A.U. on the issue. He says he is “concerned” about using it in interpreting American law. He says it is problematic as democratic theory – no one accountable to our system is the source of that law. He also says that foreign precedent doesn’t “confine” judicial discretion because you can always find some country to support you. “It’s like looking out into a crowd to find your friends.” Roberts is very articulate here. It’s a rare moment when a clear position emerges. (His second critique is more valid than the first to my mind.)

2:32 – Kyl asks about the distinction between “facial” and “as applied” constitutional challenges. Roberts does a little con-law-proffing. Kyl says the distinction justifies not addressing whether a particular case is right or wrongly decided, and Roberts agrees. (This seems wrong – if you’re asked whether a case is rightly or wrongly decided, the question is whether the decision is right or wrong on the facts that were then presented.)

2:30 – Kyl wants to know Roberts view on the role of a judge in advancing freedom and progress. Roberts says that judges must be on the “side of the Constitution.” (Breathe a sigh of relief.)

2:28 – Kyl is the Joe Biden of the right. His point is that the job of judges is not to advance progress and freedom. There are competing values, no absolutes.

2:25 – Kyl is addressing claims by Democrats that Roberts would undermine “progress” and “freedom.” No question seems imminent. Kyl says that the Kylo decision doesn’t represent progress. Neither does the Court’s jurisprudence requiring process before removing students from the classroom. Or its computer-generated porn ruling.

2:17 – Senator Kyl is questioning. He is addressing whether Justice Ginsburg did answer particular questions.

2:15 – Welcome back. Advisors to the Administration were apparently huddling during the recess, suggesting to the press that they were in consultations.

1:40 – Via How Appealing, the NYT has transcripts of the hearings.

12:47 – We’re on a break. I’ve corrected the National Journal link below.

12:43 – Biden returns to the Grove City Title IX case. He says that the lower court had read Title IX narrowly and asks for Roberts view on whether the government should appeal. Roberts said he didn’t have a position – only the Administration did. He explains that the Administration believed that financial aid extended only to the admissions office, and that the S. Ct. agreed.

12:41 – Roberts is asked about a memo discussing a prison suit in Kentucky. Biden says that the memo establishes that Roberts was trying to limiting civil rights protections with respect to prisons. It’s very hard to follow Biden.

12:38 – There is sparring over a reference to “heightened scrutiny.” Roberts says that he correctly wrote that “heightened scrutiny” doesn’t apply to gender discrimination – meaning “strict scrutiny.”

12:37 – I’ve been writing Leahy when I meant Biden. Very sorry.

12:35 – Biden asks about Robert’s reference to a “perceived” problem in a memo of “gender discrimination.” Roberts – “Of course, gender discrimination is a serious problem. It is a particular concern of my; always has been.” Roberts talks about his family.

12:33 – Biden wants to talk about the Violence Against Women Act. “Lots of people say they wrote things. I actually did write that. My little old self, with my staff.” Leahy asks about a statement by Roberts regarding how local conditions justify

12:32 – Biden presses Roberts very hard, talking over him, to give a more direct answer to whether he agrees with Rehnquist in dissent in Moore. Biden says that Roberts is filibustering. It doesn’t come across that way.

Another liveblog is going on and looks very interesting.

12:30 – Biden asks about Moore v. East Cleveland. Roberts says he has no quarrel with Moore.

12:26 – Roberts declines to talk at length about gender equality under the Constitution because unlike Justice Ginsburg he hasn’t written in the area. He explains that he has to come to the issue with an open mind.

12:24 – A question: Is there a right to privacy in the liberty clause of the Fourteenth Amendment? Yes. Roberts thinks that every member of the Court believes that to some extent.

12:24 – “Let me get right to it.”

12:23 – Biden is talking about “tacit postulates.” (At some point, the Gang of 14 will decide this is an improper filibuster.)

12:21 – Still no question. Biden says that judges could change the strike zone given ambiguities in the Constitution.

12:17 – Senator Biden is up. He suggests that Roberts is out-classing the Senators in his legal knowledge. (He’s pretty much right.) He says Roberts “hit a home run yesterday.” So far, no questions.

12:12 – Grassley returns to Grove City, which Sen. Kennedy raised. Roberts explains that the issue was whether the receipt of federal funds by students extends the Civil Rights Act to the admissions office or the entire institution. Roberts says that the Administration decided not to revisit its broader position.

12:07 – Grassley asks about originalism. Roberts – the framers intent is the guiding principles. But you have to give appropriate weight to the words, as with the Equal Protection Clause. The framers wrote more generally than for the rights of the freed slaves. So it is perfectly appropriate to apply it to gender discrimination, for example. In other areas, a strict textual approach makes sense — e.g., references to “two-thirds.” In other areas, precedent dictates the approach — e.g., the 7th Amendment, which is governed by a historical approach: what would the result have been in 1787. Roberts says he doesn’t have an overarching approach, and that most judges don’t. The demands of deciding cases, including by committee, are inconsistent with academic theory, which tends to be more doctrinairre.

12:00 – Senator Grassley asks about the courts “filling in vacuums in the law,” a phrase used by Justice Souter. Roberts says he doesn’t want directly, because Souter “will either be a colleague or will continue to be one of my bosses.”

11:50 – Senator Grassley is up. He asks a general question about judicial philosophy. Roberts talks about the rules that bind and limit judges, who merely interpret the law rather than make it. He recognizes that the courts sometimes have to intervene when other branches fail to act — e.g., Brown v. Board — and a case is presented to them.

We are in a :15 minute break.

11:25 – Kennedy accuses Roberts of repeatedly acting to narrow civil rights protections. Roberts says that Kennedy has not accurate represent his position. This relates in particular to the Grove City case.

11:23 – Roberts says that he was reflecting the position of the Administration. Roberts says that he agreed with extending the Act. He doesn’t say that he agrees with overruling Mobile. The Act continues to be an “important legislative tool.”

11:20 – Kennedy confronts Roberts on the 1982 Voting Rights Act. Roberts says he was reflecting the Administration’s view that the Voting Rights Act should be extended without change, not with an amendment with an “effects” test for Section 2 claims. The Administration did not support using an effects test to overrule Mobile v. Bolden. Kennedy cuts of Roberts and Specter intervenes repeatedly.

11:17 – The Washington Post live-blog is going strong and looks good.

Note: Marty has a post below about Executive Power.

11:15 – Kennedy complains about “narrow, cramped, and even mean-spirited” views in Roberts memos. Kennedy also complains about the non-disclosure of the SG memos. Roberts agrees that the right to vote is one of the most precious rights.

11:08 – Kennedy asks about the constitutionality of the civil rights laws. Roberts says that he doesn’t believe any issue has been raised about the 1964 Civil Rights Act. The 1965 Act, Roberts says, could come before the Court as extended. The existing Act has been upheld. Same for the 1968 Act. But Roberts cautions he would address any claim that came before him.

11:02 – Kennedy is up. He starts with Hurricane Katrina. He turns to race. Roberts says in answer to a question that he agrees with Brown v. Board of Education. (Whew.)

10:58 – Hatch discusses the ABA’s well qualified evaluation, and Roberts’ commitment to pro bono. Roberts cites his representation of a class of persons whose welfare benefits had been cut off; his first S. Ct. argument was a pro bono double-jeopardy claim; and he often does moot courts such as in a voting rights case and environmental cases.

10:55 – Roberts says that decisions invalidating statutes as unconstitutional are not necessarily “judicial activism,” but rather can represent the responsibility of the judiciary.

10:53 – Hatch asks about whether precedent is weaker in constitutional cases. Roberts says stare decisis is strongest with respect to statutes because Congress can fix statutory mistakes.

10:50 – Roberts says that his opinions show a healthy respect for all branches, as has his advocacy.

10:42 – Hatch asks a gernalized question about judicial philosophy. So far, Senator Specter’s questions are a model for how to get genuine information from the nominee, while Senators Leahy and Hatch haven’t generated much of anything of substance.

10:40 – Hatch says that Dickerson wouldn’t extend to Roe, given the Rehnquist’s continued view afterwards that Roe should be overruled.

10:37 – Hatch doubts there is a “super-duper precedent.” He asks whether Casey reaffirmed the “central holding” of Roe, but changed the framework. Roberts agrees with respect to the plurality. Hatch asks whether Casey suggests that the Roe framework has not been workable. Roberts – workability is a central consideration in stare decisis. In Casey, it led to altering the trimester framework and the strict scrutiny requirement.

10:37 – Hatch notes that Breyer didn’t speak to his interpretation of the War Powers Act.

10:34 – Roberts “does not have an overarching philosophy” that he brings to every case. “Most cases turn on the facts.” “There are some cases that everybody is going to be a literalist.” Other cases — such as those involving “reasonableness” — are very different.

10:30 – Senator Hatch is now up. He asks about categories of judging cited by Cass Sunstein in a book. Roberts says he hasn’t read it; Sunstein seems to write “a new one every week.” Roberts says he is a “modest judge.” He appreciates his role is “limited.” Judges aren’t supposed to resolve society’s problems.

10:27 – Leahy asks about an SG brief in the Franklin harassment case. Roberts says he accepts it as precedent. He points out that the actual issue was implied rights of action. Leahy is quite mad about the brief’s position that the victim had no right to sue. Roberts is quite even tempered in specifying that the question was just how to construe the statute.

10:25 – Leahy turns to the environment, and standing in particular, referencing Roberts’ Duke Law Journal article. Roberts says the key is whether the individual is genuinely injured.

10:20 – Leahy wants to be sure that all persons just based on their nationality or ethnic group. Roberts says he would “be surprised” if there were any arguments that could support it. Roberts says that the Bill of Rights means the same thing during peace or war.

10:16 – Roberts says that it really is notable how Jackson took differenct views as a Justice. Leahy asks – “are you sending us a message”? “It is one reason many admire him, including myself.”

10:12 – Leahy asks about a memo by Jay Bybee asserting a plenary Executive power over war, including with respect to torture. Roberts – “no one is above the law, and that includes the President.” The framework for deciding conflicts is the Youngstown steel seizure case, particularly the Jackson concurrence. Leahy notes that Bybee didn’t acknowledge Youngstown. Roberts says it is a very important case, particularly given that the concurrence was per Jackson, FDR’s Attorney General.

10:10 – The exchange has gotten a bit heated; strange for a pretty dry issue. Roberts says that any lawyer for any administration would have, as Roberts did, have taken the same position, whereas a lawyer for the Senate would take the opposite position. Roberts – Congress can declare war and has the power of the purse. Whether Congress has the power to end war depends on the circumstances.

10:00 – Leahy starts. He begins with separation of powers. His question involves the power of Congress to stop an unauthorized war. Roberts doesn’t want to answer questions about specific issues that might come before the Court. Similar issues have come up before the Court. He says that a memo to which Leahy is referring was written in his role at the time to protect the prerogatives of the Executive. “I believe very strongly in the separation of powers.”

9:58 – Specter asks about Roberts’ pro bono role in Roemer v. Evans. Roberts – he was asked regularly to work on matters relating to the Court and “never turned down the request.” Lawyers “don’t stand in the shoes of their client.”

9:55 – How Appealing cites to an AP article saying that Roberts has “sidestepped” Roe. My take is slightly different. He certainly has not answered directly whether he would overrule it. But his comments thus far very strongly suggest that, post-Casey, he would not overturn it given stare decisis.

9:54 – Specter asks about the Dickerson opinion reaffirming Miranda and whether the reasoning about the national culture applies to Roe. Roberts says Dickerson shows that it is “a different question” whether Roe should be overruled.

9:52 – Specter asks about Roberts’ reference in a memo to the “so-called right to privacy.” Roberts – I do believe that the right to privacy is protected in various ways; the 4th A; the 1st A; 3d A; and in addition the Court has over a series of decisions going back 80 years has recognized that it is a component of the liberty protected by the Due Process Clause, not merely procedurally but also as a substantive matter as well.

The memo reflected “the Dean’s speech” to which he was referring. Specter – they may not have been your views then, but they certainly aren’t your view now. Roberts – Yes.

9:51 – Specter asks about the relevance of Roberts’ personal views. Roberts agrees that he doesn’t judge based on his personal views, his church, etc. Roberts -t here is nothing in my personal views, based on my faith or other sources, that would prevent me from faithfully applying the precedents of the Court.

9:50 – Specter quotes Roberts saying Roe is “settled.” Roberts – It is settled as a precedent of the Court, entitled to respect.

9:45 – Specter turns to Rust, and the Administration’s brief in which Roberts was Deputy SG. Specter – this is one of 38 cases that could have been used to overrule Roe; he has a chart – it’s like six feet tall with super-fine print; no one can read it. Roberts says most telling is when the Court actually considered the issue in Casey.

9:42 – Specter asks about “super-stare decisis,” Judge Luttig’s phrase describing Roe after Casey. Roberts says that the Supreme Court hasn’t recognized that term. Casey itself “is a precedent” entitled to respect under stare decisis – i.e., its methodology and reaffirmation of Roe. Roberts is suggesting a double-hurdle for overruling Roe – not just overuling that decision but overruling Casey’s view of stare decisis.

9:40 – Roberts – there are times instability “is a price that has to be paid,” citing Brown and other cases. In those instances the overruled precedents had been undermined.

9:37 – Roberts says he won’t say whether he agrees or disagrees with particular cases. Specter says he is asking about jurisprudence and reasoning, not whether Roberts would overrule Roe. Specter focuses on Casey’s discussion of the Court’s legitimacy. Roberts says legitimacy is critically important, citing Payne v. Tennessee as saying that broad disagreement is a basis for revisiting decision, noting that Casey took the opposite view. “It is a jolt to the legal system when you overrule a precedent.” “It is not enough that you think the prior decision was wrongly decided. That doesn’t answer the question, it poses the question.”

Just a reminder – for everyone interested in keeping track of the coverage of Roberts hearings the best source by far is Howard Bashman’s How Appealing. Also excellent is the New York Times and the Washington Post blog.

9:35 – Specter continues to press on Casey. Roberts says that of 1992 you had a reaffirmation of the central holding of Roe. That application of stare decisis would itself be entitled to respect. Roberts has said nothing that suggests he would vote to overrule Roe.

9:32 – Specter asks about Casey and its view of stare decisis vis-a-vis Roe. Roberts says “the importance of settled expectations” is “very important.” Stare decisis involves many factors, including the workability of precedents and whether the doctrinal bases have been eroded. Specter says those don’t apply to Roe. Roberts says he feels the need to stay away from particular precedents. He says that in Casey did consider the erosion of precedent.

9:29 – Senator Specter has opened the proceedings a minute early, as he did yesterday (his watch is fast). Specter starts with Roe and the right to choose right off the bat, as well as stare decisis. Roberts talks about the role of precedent as embraced by the founders.

9:27 – Welcome to the second day of the Roberts hearings from the Hart Senate Office Building. Today we have decamped from the ornate Caucus Room of the Russell Building to the more media-friendly confines of Hart. All of the broadcast news organizations are in “skyboxes” above the proceedings.