Welcome to the Roberts Confirmation Hearings
on Sep 12, 2005 at 11:22 am
3:33 – The committee is done until 930 tomorrow morning.
3:32 – Roberts has no agenda. He does have a commitment – confronting every case with an open mind. He will be open to his colleagues’ view. He will show no fear or favor. He will remember it is his job to call balls and strikes, not pitch or bat. He is done.
3:30 – A “humility” should characterize the judicial role. Judges are “umpires.” They do not make the rules, they apply them. No one ever went to a game to see the umpire. They operate in a system shaped by precedent. They need to be open to their colleagues’ views. In the SG’s office, he represented the United States, but didn’t fully appreciate the Court until he went into private practice, where a private party could overcome the power of the government. The rule of law prevailed, and is the envy of the world. Pres. Reagan was right to talk about how Soviet constitutional rights were empty because of the absence of an independent judiciary.
3:30 – Roberts begins by thanking those that introduced him, as well as the President. He is “humbled.” He thanks the committee members for their courtesies. He recognizes the advice and consent responsibilities of the Senate. The late-Chief’s dedication to duty was an inspiration.
3:25 – now we turn to Roberts, who is being sworn in. Cameras are going wild.
3:20 – Senator Warner notes that 43 presidents have appointed only 17 Chief Justices, highlighting the importance of the proceedings. He says that the proceedings are an important civics lesson for young people, which seems exactly right. Warner talks about the value of the Group of 14 agreement. (Incidentally, Senator Frist has arrived at the proceedings.) He turns to Roberts’ credentials – he says that in his 25 years he has never seen a more qualified nominee. Warner explains that he is introducing Roberts because he, like Roberts, is a former Hogan & Hartson partner. He says that he is convinced in Roberts’ commitment to pro bono work.
3:15 – Senator Bayh talks about the longstanding bipartisan tradition of introducing nominees of another party. He focuses more on Roberts’ professional career.
3:10 – we are now moving to the introductions of Roberts by the Senators. Senator Lugar is first. He talks about Roberts’ youth in New York and Indiana. (Lugar notes that the last Indiana nominee, Justice Minton, declined to appear before the Committee, but was confirmed.)
3:05 – Senator Coburn offers the last opening statement. Coburn says that “judicial activism” means so many things to different people. (That seems exactly right to me.) He says that activism has created huge social rifts. (That seems overstated, but a fair point in general.) Coburn — in the most dramatic moment of the proceedings so far — nearly breaks down into tears, saying that his “heart aches” for less partisanship and bitterness.
3:00 – Senator Brownback says that the nation needs a more “modest” Court. He says that the Court loses its legitimacy when it invents rights. Roe v. Wade is the most political decision of the Court’s modern history. Brownback’s remarks focus very heavily on abortion and how important the is, emphasizing the frequency with which the S. Ct. has overruled its prior decisions. Brownback is a strong and articulate advocate for opposition to Roe.
It is worth noting that the hearings have run very smootly. It seems fair to expect that the proceedings will continue to run on schedule.
2:50 – Senator Durbin says that the basic question is whether Roberts will restrict freedoms or expand them. He says that the Roberts memos raise serious questions, making it important for Roberts to answer questions on civil rights and basic freedoms. He says that without the SG memos, only his testimony can inform the committee about his current views. Durbin also raises distinctly the question of Executive Power and says that the memos suggest Roberts may be overly deferential to the Executive Branch. Durbin comes across very well.
2:40 – Senator Cornyn says that the confirmation process has become too much like an election. He says that the S. Ct. has been hostile to individual religious expression, while being protective of selling products though violence and sex. He says that much of the country is baffled by the Court’s Ten Commandments rulings. He says that the Court shouldn’t have dismissed the Pledge of Allegiance case and ruled against the takings claim in the Kelo case. He says that the use of foreign law is improper and that Lawrence v. Texas is wrongly decided and reflects merely the changing composition of the Court. He closes by saying that Roberts has no obligation to answer questions on any particular issue. Senator Cornyn is, in effect, the opposite of Senator Schumer on every question.
So far, to my mind, the most impressive Senators have been (in order of presentation) Specter, Feinstein, and Graham.
2:35 – Schumer says that the best method of questioning focuses on whether past cases were properly decided. He says that the Ginsburg hearings support that view. The Court should not move radically to the right.
2:30 – Senator Schumer says that it is essential to determine Roberts’ philosophy and ideology. He says he will vote in Roberts’ favor if he is within the conservative mainstream. Schumer says that Roberts is impressive, accomplished, decent, and honest. He says that there is a growing consensus in support of his view that questions about ideology are important. Americans want to know whether an “overachiever” can empathize with “an underdog.” He says that the first criterion is whether Roberts will answer questions fully and forthrightly. (He notes that he has met with Roberts personally 3 times.)
2:17 – We’re back. Senator Graham says that the issues in the hearings aren’t the broad social issues of the day, but instead Roberts’ qualification. He says candidly that the committee is the “wrong place” to look for “consistency” given the Senators’ role in public policy. He talks about the Roberts memos, which he says reflect an Administration lawyer advising it about its policy. Whether conservative or liberal views are right is an electoral question. Graham, who joined the Group of 14, defends that agreement as a success, and says that Roberts is the first significant nominee under the agreement. He says that he is sure that some Clinton nominees were mistreated by the committee, but that the process has been improved. No one should be surprised that the President has nominated a strict constructionist. With respect to Roe, the country is divided; it cannot be the basis for the confirmation of a nominee. If it were, then Justice Ginsburg would not have been approved by such a broad margin. He says that the process should return to the qualifications of the nominee, not “political clones.” In my view, Graham is pretty impressive.
2:00 – We’re in a break in the proceedings.
1:55 – Senator Feingold says that he admires Roberts’ record and credentials. But he will be “subject to the ultimate level of scrutiny.” He says that because Roberts “look[s] healthy” (and will therefore be on the bench for many years) he should appreciate the importance of the proceedings. Feingold says that he’s looking for a “different” John Roberts than the one of 1985. He also raises and objects to the failure to turn over memos from Roberts’s tenure as Deputy S.G., and says that it suggests the Administration has something to hide. (So far as I am aware, there actually isn’t any genuine reason to believe that the memos contain anything of interest. Attorneys who were in the SG’s office at the time say that there almost certainly isn’t.)
1:50 – Sessions says that Roberts is a nominee “straight from central casting,” perfect for the position.
1:45 – Senator Sessions talks about a variety of dishonest distortions he sees in characterizations of Roberts’ record and writings. (He gets a little lost in the pages of his statement.) He decries activism as judges’ personal sense of good public policy. He gives as examples decisions on the taking of private property and the definition of marriage. Takings is an interesting example because those constitutional claims – many brought by conservatives – often ask the courts to overrule legislative judgments. “Activism” is employed furtherance of an array of ideologies. Sessions says that he disagrees with even conservatives who seek to use the courts to further an agenda.
1:40 – Senator Feinstein runs out of time and has to cut her remarks short.
The Washington Post’s Supreme Court Blog is posting excerpts from the Senators’ opening statements.
(A side note: conservative and progressive groups are busily emailing the press and bloggers about how Senators on the “other side” are contradicting their positions in the Breyer and Ginsburg hearings on whether the nominee is obliged to answer detailed questions.)
1:35 – Senator Feinstein addresses the family of John Roberts and says that they should understand the “toughness” of the proceedings. She says that Roberts is brilliant, talented, and well-qualified. But she says the question is whether he can lead the Court and embody the mainstream. She goes through a variety of cases currently pending before teh Court or that may be presented soon, including the constitutionality of the “partial birth abortion” statute. She talks about the issues “you are going to be in the middle of,” seemingly signaling her recognition that Roberts will be confirmed. She says that, as the only woman on the committee, she has a special role to explore women’s rights.
1:25 – Senator Dewine describes the hearings as an opportunity for a “national conversation” about the Constitution. He says that many Americans believe that the Court is unmaking the Constitution, including (in a comment notable for a Republican committee member) decisions striking down civil rights legislation. Dewine also refers to the Court’s Kelo takings decision and its citation to international law. He says that judges should simply focus on the case before them, not broader agendas.
1:15 – Senator Kohl begins by listing a variety of S. Ct. decisions enforcing individual rights. He talks about the Chief as the leader of a branch of government and the person who assigns opinions. He says he will not accept evasion from Roberts. He invokes Roberts’ reference to the “so-called right to privacy” as troublesome. Roberts would be the “most influential” judge of his generation. Roberts must express his views to the American people on the bedrock issues that come before the Court.
1:10 – How Appealing links to various opening statements here.
1:05 – Senator Kyl says that Roberts is clearly eminently qualified and that he won’t repeat his credentials. In fact, very little time has been spent on that issue. They probably will be addressed later this afternoon when Roberts is formally “introduced.” Kyl says he will focus his remarks on how questioning of nominees should be limited. In particular, he says, “ideology” should not be an issue. He notes that Roberts questionnaire says that he has not been asked questions by anyone at the White House or in the Senate that would seek a commitment on any particular issue. A nominee can no more talk about “issues” that will come before the Court than “cases.”
1:02 – Biden says that he would vote no on the basis of Roberts’s prior writings.
12:55 – Senator Biden characterizes the basic debate over the Constitution as involving the power of the federal government to protect the powerless, as well as the right to privacy. He mentions the pending replacement for Justice O’Connor, the first time that has been raised — Democrats haven’t yet suggested today that their focus will shift to that nomination. He says that the Constitution must remain “relevant and dynamic” rather than “frozen in time.” This is the time for a “more energetic federal government,” as opposed to the “Constitution in Exile.” Biden contends that some believe that the government lacks the power to deal with events in the Persian Gulf; that seems to me inaccurate or at least overstated, as even conservatives who believe in limited federal power nonetheless tend to believe in strong Executive power (including the war power).
12:50 – Senator Grassley says that Roberts appears to be extremely well qualified, and is impressed with his view of the “limited role” of the courts. He is the first to say he wants to ask Roberts about his responsibilities as head of the federal judiciary, drawing a distinction between serving as the Chief Justice rather than an Associate Justice. This is the first confirmation of “the internet age,” including “blogs” which “characterize” documents “in any accurate, more more likely inaccurate, way.” Sorry. He is emphatic that judges too often impose their own personal preferences in overriding the elected branches. He contends that the Senate must not give in to “liberal interest groups,” which demand detailed answers to particular questions on how Roberts will rule. He says that the respect that the Justices have for Roberts will ease his transition to leading the Court.
12:41 – Kennedy presents the first open critique of Roberts, saying that his early writings raise serious questions. He contends that the failure to provide documents from the Solicitor General’s Office shows that the Administration “has something to hide.”
12:32 – Senator Kennedy begins (as do all the Senators) by paying a brief tribute to Chief Justice Rehnquist. His theme is not turning back the progress over the past two centuries. He pauses on affirmative action, arguing that military leaders support it. He talks about the many diverse issues coming before the Supreme Court. He credits Roberts’ qualifications, but says they “do not end the inquiry,” which must include exploring Roberts’ commitment to principles including equal opportunity. The Senate is not a “rubber stamp.”
12:25 – Senator Hatch is emphasizing the separation of powers between judges and the elected branches. He expresses the view that the courts have become a second-chance for those who fail to secure the results they favor from the legislature. He focuses on the obligation of judges not to make commitments on issues. Nominees are not obliged to “spill their guts.” As discussed below, he cites various examples from the Ginsburg and Breyer hearings.
12:15 – Ranking Democrat Patrick Leahy’s statement focuses on Katrina as exemplifying the importance of the federal government and continuing problems of race and poverty. He says that a detailed examination of Roberts’s record is required because federal judges serve for life.
12:12 – Specter says he’s interested in Roberts’ suggestion at one point that the Justices have term limits.
12:07 – Specter refers to an “obligation” for all Senators to ask probing questions, a perspective that may be frustrating to conservatives. He makes clear, however, that it is Roberts’ “prerogative” to answer or not answer as he sees fit. Specter says that nominees in his experience answer about as many questions as they think they need to in order to be confirmed.
12:05 – Specter’s opening expresses his frustration with 5-4 decisions of the Supreme Court, both as an aggrandizement of power and as failing to provide genuine guidance to the public and the courts. He also focused on the “turbulent partisanship” of the Senate. Personally, it seems to me that Specter has done a very good job of moving the process forward when it could have melted down. Poor John Roberts is alone at the table and will have to keep the same, interested expression on his face for around 30-40 straight hours over the course of the week.
12:05 – Leahy expresses his appreciation to Specter. Roberts apparently met with both of them his morning. Opening statements already started; there was no housekeeping
11:59 – the hearings have started a minute early. John Roberts is in the room; his wife and children are seated next to him. Roberts is introducing the family.
11:55 – Chairman Specter’s statement interestingly raises the stakes of the confirmation: “his vote would likely be determinative on many key issues such as Congressional power; Presidential authority; women’s rights including abortion; civil rights including voting and affirmative action; defendants’ rights including the death penalty; prayer; and technology of the future.” He also suggests that it is appropriate to require detailed answers: “While I will not ask Judge Roberts whether he would overrule Roe, there are, in my opinion, entirely appropriate questions on his jurisprudential views that might be asked. Specter also expresses interest in finding out whether Roberts’ early memos represent his current views.
11:50 – Senator Hatch’s statement explains that there are substantial limits on the ability of nominees to answer questions about their views on particular cases an dissues. He cites various examples from the Ginsburg and Breyer hearings in which the nominees declined to provide detailed answers.
11:45 – opening statements from the Senators are starting to arrive. We now have Senator Kennedy’s, which may be a bellweather for how aggressively Democrats intend to press, and on which issues. His statement is very focused on Hurricane Katrina as symbolizing the need for government to protect individuals and protect individual rights. Kennedy offers that in his view “there are real and serious reasons to be deeply concerned about Judge Roberts’ record.” “This hearing is John Roberts’ job interview iwth the American people.”
11:40 – the best source for coverage of press reports on the Roberts hearings is, as always, How Appealing.
11:30 – the plan is to start at noon with around 15 minutes of housekeeping. Opening statements for each Senator – of 10 minutes each – start at 12:15. That will take us to 3:15, when there will be a :30 minute break. John Roberts will then be introduced by Senators Warner, Lugar, and Bayh. At 4:00 he will present a :15 minute opening statement.
11:25 – the Russell building is suprisingly quiet with the hearings only a half-hour away. The broadcast media is set up in the Rotunda outside the hearing room. It’s a wide-open marble space. Television is on the 3d floor; NPR on the 2d floor. There look to be seats inside the room for aroudn 150 reporters, and around 40-50 for the public.
Hello from the Russell Senate Office Building. The hearings start at noon Eastern. I’m here as the analyst for NPR’s coverage. I’ll be live-blogging the entire proceedings. I’ll put up posts in reverse-chronological order, so that new entries appear on top.
