Revisiting Roberts’ Rocky Road

Episode Notes

Transcript

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Intro:  Before we get started, we’d like to thank our sponsors Embroker and Posh Virtual Receptionists.  Today, we’re doing things a little bit differently.  In light of recent developments at the United States Supreme Court, we decided to offer a revisit to a classic episode of Lawyer 2 Lawyer.  In fact, the very first episode of the show.  Nearly 17 years ago, when this show began, many things were different.  For one, this show wasn’t even called Lawyer 2 Lawyer; it was Coast to Coast.

On our very first episode of Lawyer 2 Lawyer, entitled Roberts’ Rocky Road, we discussed the nomination to the United States Supreme Court of John Roberts, then the DC Circuit Appeals Court Judge, now the Chief Justice.  Even then as now, a great deal of attention was focused on the possible overturning of Roe versus Wade.  But as we approach that likely reality now with a Dobbs case, and as we see more and more attention focused on both the legitimacy of the Supreme Court and the role of its Chief Justice, we here at Lawyer 2 Lawyer want to reshare this conversation from our archives to provide you with a glimpse into the talking points surrounding his nomination in 2005.  So, here it is, Roberts’ Rocky Road.  We hope you enjoy this lookback and can forgive the more dated audio quality.  We’ll be back soon with another brand-new episode of Lawyer 2 Lawyer.

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This is Coast to Coast with J. Craig Williams and Robert Ambrogi, America’s top web bloggers in the legal profession.  And yes, they are attorneys, one from each Coast.  Squaring off of legal news at legal observations.  You can only guess what will happen next right here on the Legal Talk Network.

J. Craig Williams:  Welcome to the Legal Talk Network.  We are glad you could listen today on our show Coast to Coast.  I’m Craig Williams from Southern California.

Bob Ambrogi:  And I’m Bob Ambrogi from Massachusetts.

J. Craig Williams:  You know, when we planned the topic for today’s show, the John Roberts’ Supreme Court confirmation hearing, we had no idea the story would take so many twists and turns.  And now, we’re talking about John Roberts’ nomination to be the Chief Justice of the Supreme Court.

Bob Ambrogi:  That’s right, Craig.  It’s been quite a week as of course Saturday night we learned about the death of Chief Justice Rehnquist.  He died at his home after a long battle with thyroid cancer.  And then on Monday morning, President Bush on the brief press conference to nominate Judge Roberts to be Chief Justice.

J. Craig Williams:  Well, of course, the nomination of Roberts as Chief Justice and yet to be named nominee to fill retiring Sandra Day O’Connor’s seat on the bench has monumental complications and implications for the complexion of this court.

Bob Ambrogi:  That’s right.  And to help us look at this and discuss all the angles, we’ve brought together a formidable list of guests for the show.  I’d like to introduce, first of all, Professor Craig Bradley from the Indiana University School of Law.  Among his many achievements, Professor Bradley was a clerk for Justice Rehnquist in 1975, 1976.  He’s also served as an attorney in the U.S. Justice Department and an assistant U.S. attorney in Washington, D.C.   Professor Bradley teaches criminal law and constitutional law and has written extensively, including three books and more than 30 published articles.  Welcome to the show, Professor.

Craig Bradley:  Thank you.

J. Craig Williams:  We’d also like to welcome Elliot Mintzberg, who’s the Vice President and Legal Director of People for the American Way.  It’s a national organization of about 600,000 members and activists committed to advancing the principles of tolerance, free expression, religious liberty, equal opportunity, and constitutional freedoms.  Mintzberg has appeared on numerous TV and radio programs discussing legal and constitutional issues; including CBS’ 60 Minutes, ABC’s Nightline, CNN’s Crossfire and National Public Radio’s All Things Considered.  Welcome, Elliot.

Elliot Mintzberg:  Pleasure to be here.

Bob Ambrogi:  We’re fortunate also to have Veteran Supreme Court Reporter Lyle Denniston.  Lyle is one of America’s leading supreme court reporters.  He’s been covering the court for 45 years.  Many know Lyle in the blogosphere as a writer for Scotus blog, and I’ve been reading his comments all weekend to stay in touch with what’s going on with the Roberts’ nomination.  So, welcome, Lyle.

Lyle Denniston:  Glad to be with you.

J. Craig Williams:  We’d also like to welcome Professor Gail Heriot from the University of San Diego School of Law, in my neck of the woods.  Heriot was counsel to the Senate Judiciary Committee in 1998, advising the then Committee Chairman Senator Orrin Hatch on civil rights issues and judicial nominations.  And before that, she was an Associated Hogan & Hartson, which is where John Roberts is from in Washington, D.C.  And Professor Heriot writes for the Right Coast, which is a legal blog found at the rightcoast.blogspot.com.  Professor Heriot.

Gail Heriot:  Thanks for having me here.

J. Craig Williams:  Glad to have you.

Bob Ambrogi:  Professor Bradley, we know that your time is a little bit short today, because you’re leading to go to Washington for the funeral.  But we want to start off by just asking you, you’ve clerked for Justice Rehnquist–

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–and I wanted to get your perspective on what the legacy will be of the Rehnquist Court going forward and what this might mean for a Roberts’ Court?

Craig Bradley:  Well, I think the Rehnquist Legacy is that he started off as a rather lonely voice for a very conservative agenda for the court.  Gradually, he got allies to support this and has moved to court to the right, particularly on matters of federalism and states’ rights.

J. Craig Williams:  And Lyle, you see the court pretty much on a daily basis given your reporting.  One of the issues that I was concerned about is, how do you see the administration changing, the administration of the courts from Rehnquist over now to Roberts’, assuming that he’s going to get confirmed.  And in light of what’s going on down with Katrina and the loss of the Fifth Circuit and the number of federal courts and those issues, do you think he’s going to step up and be able to handle that?

Lyle Denniston:  Well, I think John Roberts is certainly equal to the task.  I’m not sure that he’s going to run the court with as much expedition as Chief Justice Rehnquist has run.  Rehnquist has really streamlined the court’s internal processes so much so.  In fact, there’s almost no open discussion even during the debate on how to decide cases.  The chief runs through the private conference very rapidly.  I’m sure that John Roberts, at least at the outset would probably have more interest in a little more crosstalk at the conference than the chief has had though having then a law parked at the court, obviously, he knows about the need for efficiency.  But there are some members of the court, particularly Justice Antonin Scalia, who would like a little more discussion in the conferences when cases come up for initial voting patterns.

J. Craig Williams:  All out the Burger era?

Lyle Denniston:  Yes.  Well, I’m not sure that they were — I’m quite sure.  In fact, there will be acrimonies that there was during the Burger years when conferences often deteriorated into what were pretty close to catfights, that it’s not been that way at all under Chief Justice Rehnquist.  Given John Roberts’ demeanor and his even-tempered character, generally, I think he’s going to run a very civil conference.  I think it’ll be a very intellectually stimulating conference as well.

Bob Ambrogi:  What are the events of the past week? How have they reshaped the course of what we’re likely to see happen over the next couple of weeks and through this nomination process?

Lyle Denniston:  Well, I think what we’re awaiting to hear is just how fervent the Democratic opposition will be.  If we’re talking only about the short-term process.  The Senate leadership wants a vote on John Roberts’ nomination before the end of September and to a degree, obviously, the Republican leadership has control over that agenda, but they cannot control what the Democrats do once the nomination gets to the floor.  So, I think there is a possibility, probably more than a possibility that the final vote on the floor of the Senate will come before the end of the month.

J. Craig Williams:  Elliot, between now and the time that the vote does come, what do you see happening in terms of people for the American Way in the positions that your group is going to be taking on Judge Roberts’ nomination now?

Elliot Mintzberg:  Well, we have opposed Judge Roberts’ nomination because we think that his record shows that he does not have the appreciation for some of the key rights and liberties, and indeed for the importance of federal authority, which we’re seeing more and more in the tragic aftermath of Hurricane Katrina and the importance of that as an important principle.  We expect to continue to make those points in the public and to the United States Senate and the Senate Judiciary Committee where the key question is going to be will Judge Roberts in fact answer questions that many, many members of the committee on both sides of the aisle have about just what his judicial philosophy is and will be on a number of key questions.  At the same time, it’s critical to keep in mind what one of you said earlier on.  This is incredibly momentous where that to see a change in almost one-third of the Supreme Court between the Chief Justice and Justice O’Connor leaving the court.  And so, it’s critical, so we keep in mind the larger picture, the replacement for Justice O’Connor as well where we hope this time we will see the President move towards consensus and not towards confrontation.

J. Craig Williams:  Professor Heriot, you see this from a very unique perspective, having worked with Judge Roberts and having advised the Senate Judiciary Committee on this kind of nominations.  What’s your sense of it?

Gail Heriot:  Well, I didn’t necessarily work with John Roberts at Hogan & Hartson.

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I worked with Elliot Mintzberg at Hogan & Hartson.  But I think that despite the opposition from organizations like People for the American Way, that more likely than not Roberts’ nomination is going to go smoothly.  Now, that said, everyone thought that Clarence Thomas’ nomination was going to go smoothly at this point in the process, and that didn’t happen.  So, anything can happen.  But right now, things look pretty smooth.  I think there’s an understanding on both sides of the aisle in the Senate, that it is not good for the American Judiciary to have a process that is confrontational.  And I think that Bush has a nomination that everybody can get in line behind, or at least most members of the Senate.  So, I think it’s going to go relatively smoothly.  But don’t hold me to that in case something goes wrong.

Bob Ambrogi:  Craig Bradley, I wonder if you think that the nomination of Judge Roberts to be Chief Justice now has turned the attention more to the next nominee and a little bit away from the Roberts’ nomination.

Craig Bradley:  I agree with Gail that to all appearances, the Roberts’ nomination is going to go very smoothly.  So, everybody is now starting to worry about who they hope the new O’Connor replacement will be because that’s the important one.  Roberts looks a lot like Rehnquist so I don’t think anybody is anticipating that he’ll vote much differently than Rehnquist.  Although I think Rehnquist did come to the court with more of an agenda partly because 33 years ago, the law was in a different position than it is now.  So, I expect Roberts to be generally a respecter of precedent rather than someone who has an agenda to change precedent.

Bob Ambrogi:  Elliot Mintzberg, the People for the American Way have called for Bush to appoint what they’ve described as more of a consensus candidate to replace Justice O’Connor.  What might that person look like?

Elliot Mintzberg:  I’m not going to name anybody because that would be the kiss of death.  So, the last thing a potential nominee needs is for somebody from People for the American Way to mention them.  But there have been numerous Republican appointed judges not on the shortlist in the media that I think there would be very little dispute about who have really had no problem being confirmed, and if shown in their records that they do have an appreciation for these key rights and liberties and federal authority that we need to worry about. 

What’s also important though is how the administration handles the nomination.  I mentioned for the importance of John Roberts answering questions.  That becomes even more important because the Bush Administration for the first time in history has refused even to talk to the Senate Judiciary Committee about revealing Internal Justice Department documents that were produced for the Rehnquist and the Bork nomination for example.  So, I think it’s particularly important for the Roberts’ nomination that the president truly come clean on this when it comes to future nominees.  It’s very clear that there are consensus nominees that have been mentioned by senators of both parties, that the president could certainly opt for.

Bob Ambrogi:  Does this nomination to be Chief Justice call for a higher level of disclosure than would have been the case previously?

Elliot Mintzberg:  I would argue yes.  Again, this is the person that will lead our entire federal judicial system for probably the next 30 years or more.  Not only the authority that he has as Chief as Lyle has mentioned to direct the conference to decide who writes opinions when he’s on the majority side.  The authority that he has over numerous federal committees, special courts, to speak for the federal judiciary.  All these things it seems to me make even more important and should set an even higher standard for disclosure, for full disclosure, both from him in terms of answering questions and the administration in terms of producing documents.

J. Craig Williams:  Well, I think it’s time for us to take a commercial break.

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Male:  This is Coast to Coast with J. Craig Williams and Robert Ambrogi.

J. Craig Williams:  Lyle, from a reporter’s perspective, how do you see the release of the documents from the Reagan Library on Judge Roberts and the information that’s available now?

Lyle Denniston:  Well, one of the difficulties I’ve had in reading these documents and determining their significance is we’re talking about a 20, 25-year gap here.  There is a lot of history, including a lot of history for John Roberts that has unfolded since those memos were written.  I think they tell us a great deal about John Roberts as a rather bumptious, and even at times, aggressive conservative, but I’m not sure they tell us very much about what John Roberts would do on the Supreme Court.  The service that he has had on the D.C. Circuit Court of Appeals in Washington is too brief and the output there too limited for us to make any real judgment.

So, to some degree, if you focus on those memos, you’re focusing lively on the only public record that John Roberts has made about his substantive views on matters that may come before the court.  So, I have thought that those memos were not a particularly compelling deposit of materials for determining just what John Roberts would do once he got on the court.  They are very interesting.  They tell us a lot about useful exuberance.  I’m not sure they tell us some much about whether or not he would be a more sober, a more moderate figure on the court, or perhaps even a more radical figure on the court than those memos would suggest.

J. Craig Williams:  Gail, I’ve seen that Judge Roberts has argued when he was a practicing attorney some 39 times in front of the Supreme Court.  Do you think there’s anything that can be drawn from that record?

Gail Heriot:  Well, I think, one thing you can say for certain is that John Roberts is an immensely talented lawyer.  People in Washington who argue before the Supreme Court write brief for the Supreme Court to speak sometimes when it was a sense of reverence, when they mention his name.  I did want to mention something about the memos during the White House years though.  But I think maybe it’s being neglected in the last couple of days.  Now, that Roberts has been nominated, you can look back at some of those early White House memos, and I think at least be reassured on issue that people don’t know we’ve talked about and that is the sense of decorum on the court.  John Roberts in one of his memos for the White House would ask whether it would be appropriate to have, I believe the sculpture done of then President Reagan.  I was actually delighted to see that he had a sense of it as inappropriate to do a sculpture of a president who is still living.  And he generally has taken on numerous occasions now, a position that I regard it’s very American and that is there should not be excessive display by government officials, and that would include the president, and I assume the court as well.

Bob Ambrogi:  Elliot Mintzberg, how is a Roberts’ court likely to change the legal landscape?

Elliot Mintzberg:  It’s hard to tell that until we know who’s going to be filling that other position.  But I think there’s no question that Roberts at the very least would follow in the footsteps of Chief Justice Rehnquist, and possibly move even somewhat to the right on some important issues.  An important one is, again, this issue of federal authority we’ve talked about.  I think Lyle is right, is that just looking at isolation at the memos from the Reagan era don’t tell you much.  Although in those memos for example, he argued on behalf of states’ rights against things like a strong provision on the Voting Rights Act.

But when you couple that together with other parts in his career, you see a career long pattern where as a private commentator he praised some of the court’s decisions, limiting congress’ authority and indeed is a judge he was one of the only two judges in the D.C. Circuit to dissent in one case and to argue that the Endangered Species Act may well be unconstitutional as applied to a particular development out in California.  And that’s been an issue whereas I think Professor Bradley pointed out, Chief Justice Rehnquist has led.  But even Chief Justice Rehnquist has recognized some limitations.  Rehnquist and O’Connor were the two votes that prevented the Supreme Court from declaring unconstitutional the Family Medical Leave Act, where would John Roberts beyond that.

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I think it’s an unclear and troubling question.

J. Craig Williams:  Professor Bradley, you clerked for Judge Rehnquist.  How do you see the legacy moving on with Judge Roberts?

Craig Bradley:  Well, again, I expect Roberts to look a lot like Rehnquist.  I don’t think he’s going to be a right-wing extremist or a right-wing activist justice, but there certainly every indication that his views are very similar to those of Rehnquist.

Bob Ambrogi:  Gail Heriot, I wonder from your perspective of having worked with the Judiciary Committee, what’s going on over there right now?  What’s the behind-the-scenes activity of the Judiciary Committee as they look forward to the next month or two?

Gail Heriot:  Well, I think that’s taking up most of the time for the staff members is reading every line they can find that John Roberts has ever written.  That’s a tremendously time-consuming activity.  And there are a lot of people doing it and everything is being read five or six or seven times.  They’re meeting on things that they consider to be interesting talking about.  What I think is interesting is that as recently as the 1920s, it was still possible for a Supreme Court Justice to resign on a Monday, the president to nominate him on a Tuesday, and the Senate to confirm him on a Wednesday.  The Senate hearings we’re preparing for, those are actually new in in American history.  It wasn’t until the 1920s when the first Senate held its first committee, held a hearing of this sort.  And it wasn’t until the 1950s that those hearings became routine.

I believe it was Sherman Minton, when FDR nominated Sherman Minton.  He actually refused to appear before this Senate committee on the ground that he thought it was undignified and it was unnecessary given his extensive record, and they confirmed him anyway.  These days all sorts of time is invested in preparing for these hearings.  I have a feeling that in the end, these hearings are not going to be as acrimonious as some previous ones have been.  But the preparation time is going in right now.

Bob Ambrogi:  So, the hearings that start Monday is a recent development historically in the process of nominating Supreme Court Justice.

Gail Heriot:  Since the 1920s.

J. Craig Williams:  Do you think that the — and this is an open question.  Anybody who wants to jump in and answer this.  Do you think that the fight is going to be over Judge Roberts? Do you think he presumed to be confirmed and that people are going to say their capital and deal with the next nominee?

Craig Bradley:  I think that would be the best strategy.

Elliot Mintzberg:  I think we don’t know, and I think a lot of it is going to depend as I said before on the hearing.  There are a lot of folks including us that have opposed Judge Roberts, but the proof will be in the pudding, in the hearing.  And the difference as Gail has pointed out, has made the nominations before at this point in time, people thought that Robert Bork would have no trouble being confirmed and he was voted down in large measure because of what happened at the hearing.

Bob Ambrogi:  So, Roberts as Chief Justice is not necessarily a fait accompli at this point?

Elliot Mintzberg:  I don’t think a fait accompli.  I think that this is a question that I think would be better asked after the hearings when we see how Roberts answers to many questions that are going to be asked.

J. Craig Williams:  Lyle Denniston, assuming he does become Chief Justice, what will be the greatest challenge he’ll face when he first takes that seat?

Lyle Denniston:  Well, as an older American, one of the challenges I think he faces upfront is that he’s very young and he will be joining a court and trying to lead a court made up of a good collection of seniors and very experienced seniors, and remembering that this is a court that has been very stable in this membership for over a decade.  I think he also will find it a challenge to manage the court administratively.  The court is undergoing a major reconstruction of its building and its grounds, that takes a lot of attention.  I’m not sure John Roberts has a real idea yet of how much time it takes for the Chief Justice to act as the superintendent of the entire American judiciary.  He obviously will have talented people to work with him on running the judiciary, but that’s something that I don’t think John has done very often.  He doesn’t have, to my knowledge, any known administrative skills though I suspect he will develop them rather rapidly because he is a very adaptable sort of a person.  But I don’t think he will have much difficulty getting into the substance of the materials before the court.  I’m eager to find out how whether or not he becomes something of a consensus builder.  This is a court that’s going to continue to be very closely divided on quite a number of issues that not least of which is the question of the division of power between the federal and state governments, an area in which the Chief Justice was really a pioneer of modern pioneer.

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Anyway, and that penalty questions on that somewhat arching question of how American courts look to form the legal decisions for guidance.  I think John will have no difficulty whatever getting into the substance I’m not sure he’s going to be able to mass the court in the way, for example, that the late Justice William Brennan did.  He has great skills, but I’m not sure that he has any real preparation for trying to mass a quart of what expects to be nine people with varying backgrounds.  Most of them have a great deal more experience.

J. Craig Williams:  Elliot, if you could ask Judge Roberts one question if you were sitting on the Judiciary Committee, what would that question be?

Elliot Mintzberg:  I hate it if you boil it down to just one question.  But if I had to choose one, I think that the one that stood at the top of everybody’s list is whether Judge Roberts believe that the constitution does in fact protect a right of individual privacy and what that right encompasses.

J. Craig Williams:  Gail, what would your question be?

Gail Heriot:  You know, I’m the wrong person to ask that question because I feel that most of the questions that get asked to Supreme Court nominees, even though they’re perfectly legitimate questions, the answers are not wholly reliable.  On the one hand, you can ask a very specific question.  Judge Roberts, how would you decide this case? And he would of course respond by declining to answer that question.  On the other hand, you can ask a question that’s more abstract.  About his judicial philosophy and those are perfectly legitimate questions, but we as lawyers know the questions that are asked in the abstract frequently the answer doesn’t quite convey the individual judge’s overall views.  One could answer, “I don’t believe there is a right of privacy,” but it may turn out that person would confront it with the right facts, find a right, but they wouldn’t label privacy.  They would label something else, but might cause them to come out on a case in the way that a person who supports a constitutional right of privacy might have believed would require them to say, “Yes, I believe in a right of privacy.”  Abstract questions are very hard to deal with, and that’s why lawyers are trained not to think in abstractions, but to think in concrete cases.

J. Craig Williams:  Exactly right.

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J. Craig Williams:  Thanks very much for listening to our podcast today and our new internet radio show.  I’m Craig Williams from Southern California.

Bob Ambrogi:  Thanks for tuning in.  This is Bob Amborgi from Massachusetts.  We’d like to thank you all for participating and dialing in today.  We really appreciate your comments and your insights.

J. Craig Williams:  It’s been wonderful.

Elliot Mintzberg:  Our pleasure.  All right.

Gail Heriot:  Bye-bye.

Outro:  Thanks for listening to Coast to Coast with Robert Ambrogi and J. Craig Williams.  We hope you’ll listen again and check out our other shows on the Legal Talk Network.

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