The Roberts Hearings, Day Three

6:35 – Senator Feinstein is up. I’m out of pocket for the next 90 minutes unfortunately because I have to go do a one-hour NPR special that happens at 7pm.

6:14 – Roberts agrees the Court has held that there is no right to die.

6:11 – Brownback talks about the Solomon Amendment case. He asks a general question about the spending power and its power to condition the use of federal funds and gets a general answer.

6:06 – Brownback wants to talk about the definition of marriage. He doesn’t bother to ask a question.

6:00 – Brownback is up, talking about the First Amendment. He talks about a series of decisions he doesn’t like, including campaign finance. Roberts says it depends.

Note that there are some other posts below this one.

5:58 – Durbin returns to the Bob Jones memo. Roberts says a meeting agenda listed Bob Jones, but he didn’t participate in any way.

5:57 – Durbin asks why the issue of abortion is so important to women. Roberts says that it is important to women on both sides. Roberts believes passionately in the vindication of the rule of law.

5:56 – Durbin tries unsuccessfully to get Roberts’ personal view on Plyler.

5:50 – Durbin asks about Plyler v. Doe and a Roberts memo in the case. Roberts apparently urged a narrower reading of the civil rights laws than the Administration eventually took. Roberts says that he was reflecting what he perceived as the AG’s view.

5:45 – Durbin asks about Roberts’ representation of an HMO ERISA case that Roberts lost. Roberts says he had no reservations about his client’s position. He does not sit in judgment of the position of his clients, so long as their position is reasonable or in the mainstream. Durbin presses, and Roberts is quite confident here and not at all defensive. Interestingly, Roberts continues to talk in the present tense — “I take cases . . . .” — notwithstanding that he has been a judge for 2+ years.

5:38 – Durbin is up.

5:31 – Specter talks about the schedule. The testimony will finish just before 8pm tonight, continue tomorrow morning, then turn to panels. Durbin will go for 20 minutes; Brownback and Coburn the same. Republicans waive a third round. Specter opposes one. But Democrats will get one. 6:30-45 will be tonight for Senator Feinstein, as well as some tomorrow morning. (Not clear exactly how it will go to 8pm.) Tomorrow morning Senator Kennedy will do 20 minutes at 9am. The “exec” will be set for Thursday the 22d, but would waive the ability to move it by one week. The committee would vote. Likely a floor vote on the 26th. The Exec will have 10 minute statements as the “pattern.” The panels may go very late tomorrow.

5:29 – I went away to the restroom. I’m promised that nothing new has happened.

5:10 – We’re back. The break turned into a vote. We just filled basically an hour on NPR. Senator Cornyn is up.

4:30 – Sorry, I forgot to mention we’re on a break.

4:10 – Schumer has a very good riff on movies. That it as if he asks what kind of movies Roberts likes, and Roberts says those with good acting. Asked if he likes Casablanca, Roberts says “lots of people like Casablanca.” Asked for a particular movie he likes or dislike, Roberts declines to answer. Roberts has a funny response naming North-by-Northwest. He then says that he believes he has been more forthcoming.

4:08 – Schumer asks if he is in the mold of Scalia and Thomas. Roberts is his own man.

4:05 – Schumer focuses on the Ginsburg example, but Roberts is quite patient and maintains that Ginsburg limited herself to cases on which she wrote when those decisions weren’t settled.

3:58 – Schumer objects to Roberts’ refusal to criticize decided cases, given that he could have done that as a private lawyer, a commentator, and a judge. (This seems valid as to questions that don’t go to issues that could come before the Court disctinctly in a reasonable time, but obviously invalid as to other issues precisely because Roberts now is going to have to decide these issues on the Supreme Court and needs to preserve the appearance of independence.)

3:55 – Roberts won’t say if he agrees with Lawrence. Schumer asks if Roberts agrees with any Thomas opinion in a decided case. Schumer asks whether it is possible Roberts agrees with Thomas. Roberts doesn’t answer directly. They disagree about whether Thomas took the position that there is no substantive right to privacy under the Fourteenth Amendment. Roberts won’t say whether he agrees with Thomas’ approach.

3:52 – Schumer asks whether Roberts agrees with Justice Thomas that there is “no general right to privacy.” Roberts – it depends on what you mean by “general.” “I think that there is a right to privacy protected substantively protected under the Due Process Clause.” Thomas says that privacy doesn’t extend to the activity in Lawrence.

3:50 – Schumer is up. He is on privacy.

3:48 – Roberts agrees he should try to unite the Court. (I’m less impressed with Graham with each passing moment.)

3:45 – Graham doesn’t like Kelo. He just wants Robert to know that his constituents are pissed. Legislatures are going into sessions urgently. “We watch . . . There is a limit.” (Of course, this is exactly Roberts’ point – that legislatures decide whether eminent domain is appropriate.)

3:38 – Graham is arguing for aggressive presidential powers in a war on terror. He’s going to be introducing legislation.

3:33 – Linsday Graham says there is a Ninth Circuit decision hot off the presses forbidding people from saying the Pledge. He says that’s why Americans are “dumbfounded.” (They may be dumbfounded in part because that’s not the right court or the right ruling, although the actual ruling is sure to be reversed.)

3:30 – John Roberts was proud to work for Ronald Reagan. John Roberts is not racially insensitive.

3:30 – Lindsay Graham is up. Roberts agrees that if he was required to be recused, Presidents could use interviews to knock judges off of cases. (Again, this is the sort of thing Roberts wouldn’t discuss yesterday.)

3:28 – Roberts says that the best guard against wrongful conviction is ensuring competent counsel.

3:23 – Roberts became aware of the recusal issue when he saw an article. (Yesterday, he refused to answer this question.)

3:20 – Feingold comes back to Hamdan. He rehearses the time-table of the interviews and the decisional process. Roberts says work on the opinion was done a week before its release.

3:18 – Feingold says that we know how the other eight Justices would rule in Hamdi, so why is Roberts different? (This comes across as silly to absurd. The Justices decided a case in the judicial process. Feingold himself recognizes that extra-judicial discussion would be a basis for requiring recusal.)

3:15 – Feingold is up. Feingold reads the 2d Amendment to protect an individual right to bear arms. Roberts says there is a circuit conflict, so he won’t comment. He says “Miller sidestepped” whether it protects and individual or collective right. “That’s very much an open issue.” Roberts says it deserves consideration. (This should encourage gun-rights advocates somewhat, just in the sense that Roberts says the question is open.)

3:00 – Sessions tells Roberts not to come ask for a pay raise for judges.

3:00 – Roberts – Raich puts Lopez and Morrison “in context.” There is “decision after decision” going back to Gibbons v. Ogden recognizing “that it is a broad grant of power.” It is a legislative determination.

2:58 – Sessions asks whether Roberts knows the source of the doctrine that “the power to sue is the power to destroy.” Roberts gently says that he’s familiar with the maxim that “the power to tax is the power to destroy.” Roberts is right.

2:50 – Senator Sessions is up. He agrees with Roberts that Lopez just turned on the absence of a jurisdictional element.

2:42 – Roberts has no quarrel with the extension of Griswold to unmarried couples in Eisenstadt v. Baird.

2:37 – Roberts – “As a general matter,” the President cannot decide not to follow a treaty. He doesn’t know if there are arguments regarding particular circumstances about Executive Power.

2:35 – Feinstein asks about Lopez. Roberts says that the key was the lack of a jurisdictional requirement, “a requirement would be easy to meet in most cases.” (This is not encouraging to states-rights conservatives. Rick Garnett just groaned, I feel sure.)

2:33 – Roberts says he hasn’t confronted the question of end-of-life care, and can’t really put himself in that position. This is a very sincere exchange between Feinstein and Roberts.

2:25 – Senator Feinstein is up. She liked his morning answers on Roe, stare decisis, and privacy yesterday, but not his afternoon answers. Roberts confirms that no one talked to him between the sessions, and no one in interviewing him before the nomination asked him about Roe.

2:17 – Dewine is asking about antitrust in modern economic times. Roberts says that you apply the same principles in a new context.

2:15 – Dewine asks about the administrative state. Roberts family heads out, although they promise to come back. Roberts incidentally doesn’t say anything interesting.

2:11 – Dewine asks about what surprised Roberts about judging. Roberts – at his first post-argument conference he sat there waiting, and waiting, and waiting, then the other judges told him he was supposed to go first. It’s an amusing story, but the room is basically empty, so it falls pretty flat.

2:07 – Senator Dewine is up. He is asking about standing. The last person in the public gallery leaves.

NEWS FLASH – A federal district court in California holds that it is unconstitutional to require reciting the Pledge of Allegiance.

2:01 – Roberts adds it is inappropriate to discuss Kelo because they already have four dissenters, who conceivably would want to revisit the issue. (It is a strange comment in that one has passed and another has announced her retirement.)

1:57 – Kohl says that Roberts told him he was “surprised” by the result in Kelo. Roberts – that was my first reaction; the majority concluded that it couldn’t draw a line. The majority did say it wasn’t ruling on the stark example of a direct transfer from A to B rather than redevelopment. There has been extensive legsilative reaction, which is an appropriate reaction. The Court is saying the issue is left up to the legislature. It is perhaps a good example of the responsibility of legislators.

1:54 – Roberts won’t say if he agrees with Bush v. Gore. (Here’s the first time I think that Roberts is just avoiding the issue, given that the Court’s opinion essentially says that it isn’t setting a precedent applicable beyond those facts.)

1:53 – Kohl asks about Bush v. Gore; the first time it has come up. Roberts – there are certain cases, relatively rare, that are important enough to take them just based on that factor. Youngstown Steel was such a case. He doesn’t know why they granted cert. in Bush v. Gore.

1:52 – Roberts – The Justices are objective and dispassionate about granting cert in cases involving splits.

1:50 – Roberts – “The job of the Supreme Court is to ensure the uniformity and consistency of federal law, particularly in constitutional cases.” He also refers to a general rule of taking cases striking down federal courts. “I do think that there is room for the Court to take more cases.”

1:45 – We’re back and Senator Kohl is up. He’s talking about cert. criteria. This is an issue that interests me, if no one else.

12:30 – Lunch recess until 1:45.

12:30 – Kyl yields time to Biden to dispute the extent to which he previously said that nominees should limit their answers.

12:25 – We’re just rehashing ground that has already been covered.

12:15 – Senator Kyl is up. (Biden was genuinely better today than yesterday; I did think that he didn’t recognize when Roberts genuinely was trying to answer his question.)

12:10 – “Here’s what I want to ask, and I’m sure you’re not going to answer . . . .”

12:07 – Biden decries that Kabuki dance of the hearings in which the nominee doesn’t say what he thinks of the law.

12:02 – Biden asks about a fundamental right to decide not to continue life-sustaining treatment. Roberts says the issue could come before the Court.

11:55 – Biden quotes the Justices’ competing conceptions of the right to privacy. Roberts – all the Justices (see Glucksberg) agree that there is a liberty interest; there are jurists who think liberty just means freedom from physical restraint, and he disagrees. The right goes back to Meyer and Pierce, and it goes beyond a procedural right.

11:53 – Grassley finishes, apparently convinced that Roberts is against False Claims. Biden is up. A question is anticipated at 12:07.

11:45 – Grassley is asking about the False Claims Act at great length. If you care about that, run to your radio.

11:32 – We’re back. Grassley is back. He’s confirming that Roberts believes in the right to vote. Stay tuned.

11:10 – Fifteen minute break.

11:09 – Kennedy raises affirmative action. He asks about the weight Roberts would give to a brief filed by military officers. Roberts says it is relevant to whether there is a “compelling governmental interest.” He says that in education cases the rule now is that race just can’t be “make or break.”

11:05 – Roberts says that he has no reason to believe that Section 2 of the VRA is constitutionally suspect.

10:53 – Kennedy is refighting the 1982 amendment to the Voting Rights Act.

10:48 – Senator Leahy finished and Senator Hatch used just over half of his time. Leahy asked some death penalty questions that I’ll come back to. Kennedy is up now.

10:18 – Leahy lists the reasons he says the Bush Administration’s policies are antithetical to the First Amendment. Roberts says he doesn’t know a lot about the doctrine.

10:15 – Leahy is up.

10:10 – Specter is on a riff about the “congruence and proportionality” test. He wants Roberts to state his views on it; Roberts won’t.

10:04 – Specter wants Roberts to discuss the correctness of the Morrison Violence Against Women Act decision. Roberts won’t because similar issues can arise.

9:55 – Specter asks whether liberty is “a living thing.” Roberts – the broad language was intended to be meaningful through the ages in changing conditions.

We’re on to the 20-minute second round of questions. I’m now going to blog a little less frequently. I’ll write whenever something interesting happens.

9:53 – Coburn likes Roberts’ body language.

9:52 – Roberts says that the federal government is one of limited powers, albeit “broad” “limited” powers.

9:47 – Coburn is on Hamdan, and Roberts’ recusal. He is backing up Roberts’ refusal to discuss the issue under the judicial canons.

9:45 – Coburn asks whether Roberts agrees that the opposite of being dead is beign alive. Roberts pauses, then agrees. “I don’t mean to be overly cautious.” Coburn now is onto abortion, like Brownback.

9:40 – Coburn asks what Congress could do better. Roberts – “Sitting where I am I’m not inclined to be critical of the Congress.” Roberts says it is sometimes hard to discern congressional intent.

How Appealing notes that there is also a live blog at MSNBC.

9:37 – Roberts will follow precedent, but doesn’t think there is precedent that would require him to use foreign law.

9:36 – Coburn is talking about foreign law. Roberts – “I don’t think it’s a good approach.” He says it is not a failure to engage in “good behavior,” they just “get it wrong.”

9:33 – Senator Coburn is up. We can only hope for some reprise of Monday’s drama, in which he read the crossword puzzle then drove himself to tears in his opening statement about bitter partainship.

9:25 – Brownback has a chart showing the times the Supreme Court didn’t overturn Plessy, arguing that there is no basis for deeming Roe “super-stare decisis.” He argues that there are false factual assertions underlying Roe v. Wade and Doe v. Bolton. No questions are imminent. Brownback on a long riff about the evils of abortion. It comes across somewhat differently than Biden and Kyl because it is plainly heartfelt.

9:20 – Brownback turns to abortion. He asks whether Roberts views a fetus as “a person or property.” Roberts declines to answer.

9:15 – Brownback asks about jurisdiction stripping. He asks about Roberts’ memo arguing that Congress’ power is plenary (as Brownback puts it, plenAIRY). Roberts talks about existing doctrine that the Exceptions Clause is limited.

A quick editorial note – to keep up with the coverage of the hearings, the first and only place to go is Howard Bashman’s How Appealing. To keep up during the day, there are other live blogs ongoing, including at the Washington Post and National Journal.

9:11 – Roberts reiterates the Court’s statement in Calder that you can’t take property from A to give it to B, but says Kelo holds that it is a legislative judgment. Roberts won’t comment directly on whether it is right or wrong. But he doesn’t express any doubts. He does flag the open question of takings that aren’t part of broader development plans.

9:09 – Brownback starts with Kelo, noting the “outroar” over the decision. Roberts says that the legislative responses to Kelo are entirely appropriate, that the Court wasn’t saying that the government should or shouldn’t use eminent domain. (Property rights advocates – at least with respect to eminent domain – should not be happy.)

Welcome back. Senator Brownback is up, one of the last two Senators to complete the first round.