The Roberts Hearings, Day Four

5:54 – This is a miscellaneous panel that isn’t going to be interesting. So I’m going to sign off for the evening to focus on NPR and a talk I need to give tomorrow. So, thanks so much for signing on to the live-blog and get ready for Chief Justice John Roberts.

5:53 – The final panel, Number 6, is up.

5:47 – Specter tries to get Strauss to take a position on Roberts, and fails. Fried agrees with Specter that Roe is “super-duper-precedent.”

5:43 – Sen. Sessions is asking various questions.

5:35 – Christopher Yoo testified in favor of John Roberts, particularly from his perspective of having worked with Roberts at Hogan & Hartson.

5:30 – I’ve been out of my seat, sorry. Judith Resnik testified against Roberts, principally on the ground that he is too inclined to Executive Power. David Strauss testified about his concerns with the President’s promise to appoint a nominee in the mold of Scalia and Thomas; he doesn’t comment much on Roberts in particular. Peter Edelman said that John Roberts is worse than Robert Bork.

5:02 – Panel 5 is up. These are law profs. Charles Fried doesn’t know Roberts but likes him because he knows the difference between law and politics.

4:57 – Sessions is making various comments, as are various other Senators.

4:50 – Senator Feinstein is having a very interesting, candid exchange with Marcia Greenberger (calling her Marcia) in public in which the Senator almost seems to be trying to justify to Greenberger voting in favor of Roberts. Marcia Greenberger responds at great length to try to try and persuade Senator Feinstein otherwise. She closes by talking about how close Roberts’ testimony is to Thomas’ testimony on the right to privacy. Specter cuts her off finally.

4:45 – Senator Biden is talking, at some length. He says that he is somewhat persuaded to Cate Stetson and Ms. Wright but there is a real question. If Biden thinks that Roberts will be like Kennedy or Rehnquist he will vote yes.

4:30 – Senator Hatch asks Marcia Greenberger whether her organization has ever supported a Republican nominee for the Supreme Court. She says that they rarely take positions on nominees — but, no. She says that member organizations were strongly in support of Sandra Day O’Connor. They did not take a position on Roberts at the court of appeals. Their concerns arise from the Roberts memos.

4:18 – We’re back. Beverly Jones, my client in TN v. Lane, is up. (Again, we haven’t spoken about these proceedings.) She tells the story of the case and says that the Senate should carefully study the Roberts nomination. Several Senators voice their support for the ADA. Specter says “we’re not going to let the Supreme Court get away with ‘congruence and proporitionality.'” (Incidentally, Sam Bagenstos did the great majority of the work on the case at the S. Ct., although local counsel argued it.)

3:46 – We’re on a break for a vote.

3:42 – Henrietta Wright is up. She is a child advocate. She is a friend of John Roberts. And, wait for it, she likes him. (She says that Roberts and their family went through pain and anguish in trying to have children, and that their first adoption fell through. It’s highly personal testimony in that respect.)

3:35 – Roderick Jackson — the plaintiff in Jackson v. Birmingham Alabama — is up. (The Democratic witnesses were generally picked when Roberts was up for the SO’c seat. Jackson and Beverly Jones won 5-4 civil rights cases with SO’c’s vote.) He has followed the hearings and has questions about Roberts’ suitability.

3:30 – Bruce Botelho, former Alaska GA, is up. He hired Roberts as a private lawyer repeatedly. There’s much discussion of compassion, etc., etc. But Roberts always kicked the other side’s butt, so Botelho liked him a lot. (One nice story – Roberts was scheduled to meet with boy scouts the night his nomination was announced, and didn’t cancel. Their judgment was that Roberts was “a pretty good guy.”).

3:23 – Marcia Greenberger is up. She says that document after document shows Roberts he is not committed to women’s rights and that his testimony shows that his life experience is divorced from his judging. (I’m a fan of Marcia Greenberger, but the suggestion that Roberts is hostile to enforcing women’s legal rights is contrary to the hearing record. I don’t doubt that he would not read the civil rights statutes broadly, but he seems committed to enforcing the statutes enacted by Congress.) (Cate Stetson is doing her best not to look like she’s shooting laser beams into Marcia Greenberger.)

3:16 – We’re back. The next panel starts. Cate Stetson is up. She’s in the Hogan & Hartson appellate practice. (She was my co-clerk.) She likes Roberts.

2:38 – Judge Lindberg is up. She worked previously at Hogan & Hartson. She likes John Roberts.

2:33 – Ms. Tallman of MALDEF is up. They don’t like Roberts.

2:29 – Katheryn Webb Bradley testifies as a Democrat who likes John Roberts. She was a clerk to Byron White and saw cases argued by John Roberts. She then worked with him at Hogan & Hartson. She really liked him. He would answer her questions. He did a moot court at her request. He told her the arguments he thought would win. He wasn’t trying to use the case to advance an ideological agenda. (Sometimes these proceedings are majestic; other times, not so much.)

2:27 – Carol Browner apparently doesn’t have an opinion on John Roberts.

2:27 – She likes citizen suits.

2:25 – She likes the Commerce Clause too.

Via How Appealing, here is a transcript from the New York Times.

2:22 – Carol Browner is up. She likes the environment.

2:18 – We’re back for the next panel. Maureen Mahoney is up. She likes John Roberts.

1:52 – Sorry, we went very quickly to a lunch break, which has around 10 minutes still in it.

1:25 – John Lewis is quite eloquent about the importance of the effects test’s importance under the Voting Rights Act to opening up opportunities for African Americans in elections. Lewis doesn’t agree that it is fair to say that Roberts was merely doing is job for the Reagan Administration.

1:20 – Sen. Kennedy says that the point isn’t that Roberts has any racial hostility, but whether Roberts “gets it.” (Scare quotes aren’t intended; Kennedy is articulating the worry that Roberts has not internalized civil rights concerns.)

1:15 – There is some questioning of the panel, which isn’t particularly substantive.

12:58 – Former Judge Nathaniel Jones is up. He says that “serious questions have been raised” abour Roberts’ commitment to civil rights and his “documented attempts” to dismantle civil rights schemes. (Judge Jones comes across as exceptionally sincere, and the causes on which he is advocating are profoundly important. I find it deeply troubling, however, to suggest that someone is a racist on the basis of (a) his work for a client or (b) his work for modern conservative causes, as the latter does demonstrate a commitment to colorblindness, not racial hostility.)

12:56 – Kirsanow says that the Supreme Court rejects far more than 50 percent of the arguments presented to it.

12:54 – John Lewis gives Peter Kirsanow the stare of death.

12:53 – Mr. Kirsanow does like Roberts. I’m good.

12:53 – Peter Kirsanow is up. I’m just guessing, but I’m betting he may disagree with Wade Henderson.

12:45 – Wade Henderson is up. He doesn’t like Roberts. He says that “all the available evidence” shows that Roberts would work to roll back civil rights, and has a “pre-Brown vision.” (In light of the hearings, this comes across as ridiculous. John Roberts is no liberal, but there isn’t any genuine evidence that he is hostile to civil rights.)

12:40 – Jennifer Braceras is up. She supports Roberts. Honestly, she is droning on, and has said she doesn’t know Roberts, and she isn’t saying anything that hasn’t been said 10 times, so Specter just asks her to summarize the remainder of her testimony.

12:31 – We’be back in panel 2. Congressman John Lewis of Georgia is up. He speaks movingly of the discrimination he experienced and the civil rights movement. He believes that Roberts’ Reagan Administration memos show him to be anti-civil rights.

12:03 – They are breaking to go vote.

11:55 – Panel 2 is up. Dick Thorburgh — who was AG during Robers’ tenure as Principal Deputy SG — is up. He likes Roberts too.

11:42 – The ABA is up. They like him.

11:40 – They are back. They found no disqualifying factors in the brief closed session.

11:05 – The questioning of Roberts is done. They are going into closed session. Specter notes this is standard practice; it doesn’t suggest any issue. My bet is that they will be back around noon.

11:03 – Senator Graham says the Committee is “an unhealthy area” because of the emphasis on Roberts’ clients. (This seems to me exactly right.)

11:00 – Durbin says that his concern is basically whether there are cases that cross the line and his personal values.

10:50 – Durbin is up. Durbin has a good set of questions that gets to Roberts’ invocation of his pro bono work on behalf of welfare recipients, etc. Durbin establishes that Roberts would have represented the other sides in those cases. He says that they are trying to get to Roberts’ core values. Roberts then has an honest and effective answer. He isn’t a cause lawyer. He became a lawyer because he believes in a rule of law. This is a very nice explanation for why you are a “hired gun,” which Roberts calls a “disparaging” characterization of what lawyers do.

10:42 – Roberts says that his DC Circuit opinions show he is not an ideology. Roberts agrees that is not the kind of person that should be on the Court. Advocates deal with the law in different ways. His briefs for parties show he isn’t an ideologue but instead respects the law. (I actually think the latter is a genuinely valid point.)

10:40 – Schumer seems to say that Roberts would be fine if he were like Rehnquist, but not Scalia and Thomas. He doesn’t say what he will do. Feinstein says she has the same issues.

10:38 – Schumer contrasts Estrada, where he says the documents were the only available evidence.

10:35 – Schumer turns to the “con side.” He thinks Roberts is lacking in compassion and humanity. Roberts wouldn’t concede that using “illegal amigos” was unfortunate; he wouldn’t admit that any of the things he argued for in the Reagan Administration were wrong. The Democrats don’t have the SG memos. Most important, Roberts won’t answer questions. He was more forthcoming than some (e.g., Scalia), but most answered more. The older cases Roberts would discuss (e.g., Plessy) aren’t much help.

10:32 – Schumer turns to “concluding thoughts.” He isn’t even pressing any more on trying to get Roberts answer questions. Schumer – “This isn’t just rolling the dice, it is betting the whole house.” Roberts “may very well possess the most powerful intellect of any person to come before the Senate for this position.” Roberts is a lawyer above anything else. Such people tend not to be ideologues. But there isn’t a long enough track record. Roberts has a theory of modesty, and modest jurists tend not to be ideologues.

10:31 – Roberts confirms that Congress gets great deference in its determinations that conduct affects interstate commerce.

10:25 – Schumer is up. Schumer – you won’t have any trouble getting us answers to our written questions before we have to vote, right? Roberts (with humor) – that depends on how many there are; my answers will be more fulsome the fewer there are.

10:23 – Sessions has asked for some time. The Republicans are responding to issues raised by the Democrats. Roberts just repeats that he isn’t anti-education.

10:17 – Roberts says that he doesn’t think opinions should be assigned in order to promote an agenda. He thinks Rehnquist didn’t assign to promote an agenda, which was important to collegiality. He doesn’t have a problem with plaintiffs’ lawyers. He has represented plaintiffs’ interests.

10:10 – Feingold asks about memos arguing against a broad view of habeas and saying that the Court is too involved in death penalty cases. Roberts doesn’t dispute that his writings represented his own views, but says that the law has changed greatly, both in terms of the S. Ct.’s rulings and Congress’ amendment of the habeas laws.

10:07 – Feingold asks about accepting honoraria. Roberts says he hasn’t thought about it.

10:03 – Feingold is up. He’s asking about judges’ participation in conferences financed by outside groups. He says that Roberts said in their meeting that he’d prefer to spend his time with his family. Roberts says that he doesn’t know enough about the programs to really comment. He says that it is good to get out of DC, such as to go to law schools and the like.

9:55 – Feinstein asks about the Boland Amendment and aid to the contras. Roberts says he knows almost nothing about it.

9:51 – Feinstein says that Duke Prof. Fiske has concluded that Roberts would be a reliable vote for corporations. Roberts says that her conclusion, based on 9 cases, is wrong and based on too small a sample.

9:48 – Feinstein asks if Roberts was wrong in Plyler. He has no quarrel with the Court’s decision. He believes every child should be educated. His personal view is that immigration status doesn’t matter. The legal question is different.

9:47 – Senator Feinstein is up. She says that she doesn’t know whether she is going to vote for Roberts. She says that her impression is of a man who is cautious and process. Roberts will be there for 40 years.

9:37 – Kennedy says that it wasn’t an affirmative action program, and Roberts signals his disagreement.

9:35 – Roberts says he authorized the FCC to defend its position in the case. The S.Ct. deserved the benefit of both sides. Their position was opposition to quotas, not affirmative action.

9:32 – Kennedy turns to affirmative action and Metro Broadcasting in particular. (Marty has an earlier post about Roberts’ decision in the SG’s office not to defend the program in that case.) Roberts says he has argued in favor of affirmative action (Rice v. Cayetano). He participated in a minority and disadvantaged program at Hogan & Hartson.

Today’s Agenda: The third round of questioning from Democrats will go until 10:50. The Committee will meet in closed session until 11:30. After that, it proceeds as follows:

ABA Panel 11:30-12p
Panel 2 12p-1p (Dick THornburgh, Rep. John Lewis, Jennifer Cabranes Braceras [U.S. Comm’n on Civil Rights], Wade Henderson [Leadership Conf. on Civil RIghts], Peter Kirsanow [U.S. Comm’n on Civil Rights], Nate Jones [Ret’d Judge])
Lunch 1p-2p
Panel 3 2p-3p (Maureen Mahoney, Carol Browner, Kathryn Webb Bradley [Snr. Lecturing Fellow, Duke Law], Anne Marie Tallman [MALDEF], Hon. Denise Lindberg [Utah Judge], Reginald Turner [Nat’l Bar Ass’n])
Panel 4 3p-4p (Cate Stetson [Hogan & Hartson], Marcia Greenberger [Nat’l Women’s Law Center], Hon. Bruce Botelho [Frmr. Alaska AG], Roderick Jackson [plaintiff in Jackson v. Birmingham], Henrietta Wright [childrens’ rights advocate], Berverly Jones [plaintiff in TN v. Lane (disclosure: my client in that case, although I haven’t talked to her about the hearings)]).
Panel 5 4p-5p (Charles Friend, Peter Edelman, Patricia Bellia [Notre Dame Law], Judith Resnik, Christopher Yoo [Vanderbilt Law], David Strauss)
Panel 6 5p-6p (Diana Furchtgott-Roth [Hudson Institute], Robert Reich, Rabbi Dale Polakoff [Rabbinical Council of America], Susan Thistlethwaite [Chicago Theological Seminary], John Engler, Karen Pearl [Interim Pres. Planned Parenthood]).

9:30 – Kennedy says he met with Beverly Jones and talks about her crawling up the steps of a Tennessee courthouse, but that was the other plaintiff, Lane.

9:25 – Senatory Kennedy is up, and is talking about gender discrimination.

9:22 – Leahy asks about the FSIA Court. Roberts talks about how unusual it is, and how his appointments of members to it must be excellent.

9:17 – Does the President have the inherent authority to invade a sovereign nation. Roberts – the question is too abstract. Presidents have claimed similar authority. It is a difficult question whether Congress can stop a war; it has the power of the purse. There is also the issue of whether there would be a justiciable question.

9:12 – Roberts says that Congress can guarantee a private right of action with a single sentence in legislation. The issue is just what Congress intended.

9:10 – Leahy is focusing on various briefs and memos Roberts wrote in the Reagan Administration, particularly with respect to implied rights of action. Roberts explains that they represent the Administration’s position and that he has no quarrel with any decisions that went against his position. On Congress’ Spending Clause authority, Roberts notes that he enforced that authority in a 2-1 decision on the D.C. Circuit.

9:08 – Welcome back. Senator Leahy is up.