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CNN LIVE EVENT/SPECIAL

Day Two of John Roberts Confirmation Hearings Continues

Aired September 13, 2005 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


WOLF BLITZER, CNN ANCHOR: Welcome back to THE SITUATION ROOM. We're watching several stories right now.
What's happening in the aftermath of Hurricane Katrina? We just heard the president say he accepts full responsibility for some of the problems that went wrong in the immediate aftermath of Hurricane Katrina. He says it did expose some serious problems that the United States has in dealing with these kinds of security issues, natural disasters, manmade disasters.

"I'm not going to defend the process going in," the president said.

We're also watching the confirmation hearings in the U.S. Senate involving John Roberts to be the next chief justice of the United States. We just heard a little while ago Senator Ted Kennedy, the senior senator from Massachusetts, ask questions for 30 minutes. He was the fourth senator to do so.

Senator Kennedy is joining us now live from the Hart Senate Office Building. Senator Kennedy, were you reassured or were you disappointed by what you heard from John Roberts?

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Well, I must say, I was somewhat troubled, somewhat disappointed on the judge's response, particularly on the areas of voting rights. And also, about the use of federal funds to various institutions and in the institutions being permitted to go ahead and discriminate against women or against the disabled.

The Voting Rights Act that was passed, the last one that we passed in 1982 -- I was here -- was passed overwhelmingly. It had Dan Quayle and the United States Senate Republicans, Newt Gingrich and the House of Representative, and it is, really, the fundamental right for all citizens which makes other rights impossible.

And I really am troubled that the nominee can't say that this is a fundamental right, and its constitutionality has not been challenged.

I'm concerned that the judge's views on civil rights, the views that he had when he was a young person in the Justice Department, appear very much to be his views today.

I asked him about different memoranda that he wrote at that particular time and what his views were today. I would have thought that he would have understood that, under the rather stingy and cramped view that he had about the role of Congress and of the Constitution...

BLITZER: Senator...

KENNEDY: ... that he would have understood the dangers that we would have about civil rights.

BLITZER: What did you think of his response to questions that Senator Arlen Specter, the chairman of the committee, asked on abortion rights for women, suggesting that the Constitution, in his view, does have a right to -- a right to privacy.

KENNEDY: Well, I think we're going to have to hear more about this. And I think we will. I think Senator Feinstein has indicated, both in her opening statement and indicated she is going to spend a good deal of time going into this in great detail.

And it does seem to me that we ought to wait and hear the responses on that particular issue. That certainly is one of the issues. Civil rights, the rights of minorities, the rights of privacy, these are very important issues. We're going to hear more about this later on during the course of the day.

BLITZER: Jeff Greenfield has a question for you, Senator Kennedy. Go ahead, Jeff.

JEFF GREENFIELD, CNN POLITICAL ANALYST: Hi, Senator.

The question is if John Roberts as a young lawyer was advocating the position of a presidential administration, was elected with the majority of the American voters. While you may disagree, can you really say that that defines him of being out of the mainstream, which I take it is the test for a justice?

KENNEDY: What we're taking is Judge Roberts' own words. His own memoranda. There were debates that took place inside the Department of Justice. He was often at odds with those within the Justice Department at that time.

And to ask him, in his own words, does he agree with those words today? Not did he write them? Of course he wrote them. Did he stand by them at that time? Of course he did. But what is his view about those today? What is his views about those today?

He would not have supported, nor did he support, the Voting Rights Act as it was eventually signed by President Ronald Reagan. And he would not affirm to the committee that -- even he indicated in his private memoranda that he thought that the administration had been burned even after President Reagan had signed that.

Now, we can understand that he was a young person when he wrote that. But I would have thought he would say, "Look, I wrote that then. Today, I stand fully behind what Ronald Reagan signed." That's really what we were looking for.

How does he stand today is the question. I think the American people are entitled to an answer on issues on voting rights and the great progress that we've made on civil rights.

BLITZER: Senator, Jeff Toobin, our senior legal analyst, has a quick question as well.

JEFF TOOBIN, CNN LEGAL ANALYST: Senator, you were on the committee in 1987 when Robert Bork denied that there was a right to privacy. Were you struck by the contrast of John Roberts saying, very clearly, for 80 years there has been a right to privacy recognized by the Constitution?

KENNEDY: Well, as one that didn't support, obviously, Robert Bork, I think that the answer today that Judge Roberts has to be really flushed out a good deal more to have a greater kind of an understanding about his own views. And I think we're going to get that during the course of the afternoon.

I don't draw, really, on watching the exchange and listening to the exchange, just with one senator. I'm able to draw a great many conclusions. I think there has to be more questions. We're going to hear them. And he'll have full opportunity to indicate exactly what his position is. We ought to hear a good deal more about that issue. It's a very important one.

BLITZER: One final question, a quick one to you, Senator Kennedy. You suggested -- you used the word -- words mean-spirited, referring to John Roberts. Certainly didn't come across as being mean spirited today. What specifically is mean-spirited about this man?

KENNEDY: Well, I think he's a very pleasant person. I've indicated that in my opening statement. What I was talking about is some of the memoranda that he wrote when he was in the Justice Department as a young person, in the Justice Department, where he was highly critical of and disdainful of members of Congress and where he was very disdainful of court opinions previously.

And it is clear from his own words, in looking at them today, that those were cramped, stingy words on the issues of civil rights. Civil rights is the fundamental issue that this nation has to deal with. We will never be truly America until we free ourselves from the forms of discrimination in our society.

And we have to know when we are putting someone onto the Supreme Court, does that justice understand it and believe in it?

We here -- I was here when we passed that legislation. We had extensive hearings. People died. People suffered. People bled on those issues. And I think if you read the words that Judge Roberts, I think it's not a great leap to say that he didn't have a full comprehension, as someone that was 30 years old, about what this country, what someone like John Lewis had gone through over the course of his lifetime.

BLITZER: Senator Kennedy, thanks very much for spending a few moments with us.

We're going to take a quick break. When we come back, much more of the John Roberts confirmation hearings. We'll go back to the Senate Hart Office Building right after this short break.

(COMMERCIAL BREAK)

BLITZER: Welcome back to THE SITUATION ROOM. We want to go right back to the U.S. Senate. John Roberts answering questions from Republican Senator Charles Grassley of Iowa.

JOHN ROBERTS, SUPREME COURT CHIEF JUSTICE NOMINEE: ... the right to vote was critical, that the Voting Rights Act had been extraordinarily effective in preserving that right and should be extended. The debate was solely over whether or not the -- section two should be changed.

And Senator Dole, working with other members of the Senate, crafted a compromise that resolved that dispute. As you said, it put an effects test in Section 2, put in additional language to guard against the sort of proportional representation that was certainly the concern of Attorney General Smith and President Reagan. And that was enacted into law with the president's support.

But there was no disagreement about the critical nature of the right to vote, the notion that it was preservative of all other rights. And the question was simply about how it should be extended, whether extended as is or extended with the change that was enacted under the compromise.

SEN. CHARLES GRASSLEY, (R) IOWA: My time's just about out, so I'll ask a very short question.

During your tenure at the solicitor general's office, didn't you sign on to a number of briefs that urged the Supreme Court to adopt a broad interpretation of the Voting Rights Act, its new requirements, and to require expansive remedies when states violate the act? And didn't some of those briefs take the same side as the ACLU, the Mexican-American Legal Defense and Education Fund, and the Lawyers' Committee for Civil Rights Under the Law?

ROBERTS: Yes, it was the responsibility of the Justice Department and before the Supreme Court, of course, the Office of the Solicitor General, to enforce the civil rights laws, and particularly the Voting Rights Act, as vigorously as possible. And that's what we did.

GRASSLEY: Thank you.

SPECTER: Thank you, Senator Grassley.

Senator Biden?

SEN. JOSEPH BIDEN, (D) DELAWARE: Thank you very much.

Hey, Judge, how are you?

ROBERTS: Fine, thank you.

BIDEN: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on "Law and Order," than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does.

I don't know about you.

(LAUGHTER)

Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of "Gotcha," you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to -- this is the democratic moment. They don't get a chance to say, "You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.'" Whichever.

And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, "Oh, he likes baseball, huh?" Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up.

But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the baseball metaphor is used again.

As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, "That was down around the ankles and I think it was a strike." They don't get to do that.

But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States.

The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?

So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?

Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.

And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.

It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.

You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.

So, as Chris Matthews said, "Let's play baseball here." And it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way.

The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. You wouldn't say, "You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate."

You can't do that.

But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years.

So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier. And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, "tacit postulates." He used that, as you know, in a case just before you got there, in Nevada v. Hall.

He used the phrase "tacit postulates." He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions. And he went on to conclude that -- this case was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution.

And he concluded that the answer was a rule he was able to infer from the overall constitutional plan.

So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.

So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: "Judge, you don't have to answer that question."

I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases.

I will just speak to a couple of them here.

SPECTER: Without objection, it will be made part of the record.

BIDEN: I thank you very much.

Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?

Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.

BIDEN: Do you think there's a liberty right of privacy that extends to women in the Constitution?

ROBERTS: Certainly.

BIDEN: In the Fourteenth amendment?

ROBERTS: Certainly.

BIDEN: Now, I assumed you would answer it that way.

Let me suggest also that I asked -- I'm not sure whether I asked or one of our colleagues asked Justice Ginsburg the question of whether or not it would be a ball or a strike if in fact a state passed a law, a state passed a law prohibiting abortion. And she said, "That's a foul ball. They can't do that."

Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, "Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional."

What is your view, according to the Ginsburg rule?

ROBERTS: Well, that is in an area where I think I should not respond because... BIDEN: Why? You said you'd abide by the Ginsburg rule?

ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.

In other areas where she had not written, her response was that it was inappropriate to comment.

In particular, I remember her response on the Maher and the Harris cases. She said, "Those are the court's precedents. I have no agenda to overrule them, and I will leave it at that."

And I think that's important to adhere to that.

Let me explain very briefly why. It's because if these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process.

The litigants have a right to expect that of the judges or justices before whom they appear.

And it's not just Justice Ginsburg who adhered to that rule. I've gone back and read...

BIDEN: Well, she obviously didn't adhere to it with regard...

ROBERTS: Well, I explained why she felt at liberty to comment...

BIDEN: Well, how's that different?

That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?

That's a stretch, Judge.

ROBERTS: Well, that's how Judge Ginsburg explained it at her nomination hearings. She said she could talk about the issues on which she had written.

BIDEN: Did that make sense to you?

ROBERTS: I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.

I think it's something entirely different if you talk about an area that could come before the court. This is an area that cases are pending before the court and likely will be pending in the future.

BIDEN: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.

One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.

That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but not brothers, violated the law.

And the chief said in the minority opinion -- your mentor -- he said, "The interest that grandmother may have in permanently sharing a single kitchen in the suite of contiguous rooms with some of her relatives simply does not rise to the level of a constitutional right. To equate this interest with fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Constitution beyond recognition."

Do you agree with his statement?

ROBERTS: You know, I have no quarrels with the majority's determination.

BIDEN: Not my question, Judge.

SPECTER: Let him finish his answer, Joe.

ROBERTS: I understand that.

And I'm concerned about ramifications in which the issue could come up. But I have no quarrel with the majority's determination.

BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.

She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- "He goes on to say, 'History, counsel caution and restrain,' and I agree with him." "He says, then" -- this is referring to the majority opinion -- "but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of the state.

And what he next says is, "History doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family. He rejects that. I'm taking a position I have all the time."

And she goes on to say -- she says, "Uh-Uh." She thinks your old boss was dead wrong. She said so, and she said the majority was dead right.

Ginsburg rule: What do you think? She never wrote about it.

ROBERTS: Senator, I think nominees have to draw the line where they're comfortable.

(CROSSTALK)

BIDEN: You're not applying the Ginsburg rule.

SPECTER: Senator Biden, let him finish. .

BIDEN: I don't have much time but go ahead.

ROBERTS: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.

I think it's vitally important that nominees, to use Justice Ginsburg's words, "no hints, no forecasts, no previews."

They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law.

ROBERTS: And the litigants before them have a right to expect that and to have the appearance of that as well.

That has been the approach that all of the justices have taken.

BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.

Did she, in fact, somehow compromise herself when she answered that question?

ROBERTS: She said no hints, no forecasts, no previews.

BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.

My question to you is: Do you agree with it or not?

ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...

BIDEN: So did I.

ROBERTS: ... she took the position that she should not comment.

Justice O'Connor took the same position. She was asked about a particular case.

BIDEN: Oh, Judge...

(CROSSTALK)

ROBERTS: She said, "It's not correct for me to comment."

Now, there's a reason for that.

BIDEN: But you're going from the...

SPECTER: Wait a minute, Senator Biden. He's not finished his answer.

BIDEN: He's filibustering, Senator. But OK, go ahead.

(LAUGHTER)

SPECTER: No, he's not. No, he's not.

(CROSSTALK)

ROBERTS: That's a bad word, Senator.

BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.

(LAUGHTER)

ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might...

BIDEN: I got that.

ROBERTS: ... come before the court.

BIDEN: Did Justice Ginsburg give a hint when she answered...

ROBERTS: I'm not going to comment...

BIDEN: ... on the specific question?

ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.

BIDEN: Well, let's make it clear: She did not. Let's stipulate: She did not adhere to the approach.

I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.

Let me go on to my next question: violence against women. I realize it's a bit of a hobby horse for me, since I wrote the legislation. And I know people say they wrote things. I mean, I actually did write that my little old self, with my staff. And no one liked it, I might add, at first; women's groups or anybody else. But in 1999, you said, in response to a question -- you were on a show, it was 1999, you were talking about a number of things. And you said, and I quote, "You know, we've gotten to a point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it's the Violence Against Women Act or anything else.

"The fact of the matter is conditions are different in different states. And state laws are more relevant is, I think, exactly the right term. More attuned to different situations in New York as opposed to Minnesota. And that's what the federal system is based upon."

Judge, tell me how a guy beating up his wife in Minnesota is any different condition in New York.

ROBERTS: Senator, I was not speaking specifically to any piece of legislation there. That was making...

BIDEN: Well, you mentioned Violence Against Women.

ROBERTS: That was the issue that had come up on the show. And the general issue that was being addressed is a question of federalism.

I think it was part of the genius of the founding fathers to establish a federal system, with a national government to address issues of national concern; state and local government more close to the people to address issues of state and local concern. Obviously, issues of overlap as well.

I was not expressing the view on any particular piece of legislation. And I think the statement you read...

BIDEN: Well, let me ask you...

ROBERTS: ... confirms that.

BIDEN: OK.

Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?

ROBERTS: The memo you talked about, Senator, I've had a chance to look at it.

BIDEN: I'll bet you have.

ROBERTS: It concerned a 50-state inventory of particular proposals to address it. "Perceived" was not being used in that case to suggest that there was any doubt that there is gender discrimination and that it should be addressed.

What it was referring to was a vast inventory. And I was not sure if the particular proposals in each case were supported in every state of the 50-state survey that was involved. Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination.

There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.

BIDEN: Let me ask you a question then, Judge. And I'm glad to hear that.

Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?

You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.

Do you think that that needs to be done, the Constitution calls for that?

ROBERTS: Yes, Senator, I do. And I, again, always have.

The confusion is in the use of the term. There are those who use the term "heightened scrutiny" to refer to what you just called "strict scrutiny," which is generally limited to issues of race or similar issues.

The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny. There has to be a substantial government interest -- an important government interest and a substantial connection in the discrimination. But the Supreme Court's equal protection analysis has three tiers now.

BIDEN: I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second.

Then, explain to me what you meant, 10 years after the decision laying out this level of scrutiny, when you wrote an '81 memo to your boss. You wrote that gender, quote, "is not a criterion calling for heightened judicial review."

What'd you mean by that?

ROBERTS: Referring to what you called strict scrutiny.

BIDEN: He didn't know the difference between heightened and strict?

ROBERTS: Well, I was about to lay it out. You said you didn't want to hear about it.

(LAUGHTER)

ROBERTS: Strict scrutiny is the...

BIDEN: I know what that is. I wonder what you meant by that.

SPECTER: Senator Biden, let him finish his answer.

BIDEN: But I have no time left, Mr. Chairman. I understand the answer.

(LAUGHTER)

The Supreme Court has three levels of scrutiny. My point was, in the context of this memo, in the context of this memorandum, the question was whether or not the court should in fact have a heightened scrutiny.

ROBERTS: And, Senator, the memorandum is using "heightened scrutiny" the way you use "strict scrutiny," which is scrutiny that's limited to the basis of race.

The gender discrimination is, as you know, subject to what's called intermediate scrutiny. And that is not what the memo is referring to with respect to heightened scrutiny. It's referring to the strict scrutiny that's restricted to issues of race and ethnicity

BIDEN: I'll come back to that in the second round because that's not my reading of what you said.

But let me get on to another issue here, again in the sex discrimination area.

The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners.

And I'm going to finish my whole question. And you wrote to the attorney general that "I recommend you do not approve intervention in this case." And then you set out three reasons why you shouldn't approve of it. Not that there wasn't discrimination.

You said, one, that private plaintiffs are already bringing suit; secondly, the United States argument would have been based upon giving higher scrutiny to claims of gender classification; and, thirdly, that we need to be concerned about tight prison budgets, you say.

And you go on to explain that if in fact you hold them to the same standard, they may get rid of the program for the men.

Now explain to me your thinking there. I mean, that seems to be...

ROBERTS: I'm sorry. What was the date of the memo, Senator? I don't...

BIDEN: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.

ROBERTS: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.

BIDEN: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- head of the Civil Rights Division in the Reagan administration says it is pretty clear Kentucky is discriminating against women in their prison system -- and you say, in effect, that may be, but, look, we shouldn't move on it, I recommend we don't do anything about this -- and the reason we shouldn't do anything about this is threefold.

One, a private citizen already went ahead and filed suit on this; number two, if in fact you go ahead and do this, they may do away with the system for the men because there tight budgets -- and I forget the third one. You now have the memo.

ROBERTS: I have the memo and see that one of the areas that you mentioned, I say that -- and this is to the attorney general, and I say the reason we shouldn't do this is because you have publicly opposed such approaches. So again, it would have been...

BIDEN: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent? ROBERTS: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else. I would regard it as very poor staff work, with all due respect, Judge, because it seems to me you insert your views very strongly in here.

You don't say you said this. You say, by the way, there are other reasons why we shouldn't do this.

Assume you're saying you wouldn't go this route before, "But I want to give you more ammunition here, Brad (ph)."

Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.

My time is running out. I'll come back to this. I hope you get a chance to study it between now and the time we get back to the second round.

Next question. You know, I find it fascinating, this whole thing about Title IX, and whether or not -- by Title IX, you and I know what we're talking about, but for the public at large who really has an interest in all this as well, the issue was whether or not, when a student gets aid, whether or not it only goes to the admissions piece of it.

Now, you said something that was accurate, but I don't think fulsome, to Senator Kennedy. And correct me if I'm wrong. You said: Look, we were arguing that it did apply, Title IX did apply. If a student got aid, it applied to the university.

That was one of the questions, whether or not you have no application or a narrow application.

BIDEN: And you argued that it should apply to the admissions process.

But there's a second issue in that case, and the second issue is: Do you apply it narrowly only to an admissions policy, or do you apply it to if they are discriminating in dormitories?

I got your answer on the first part: You thought it should apply, at least narrowly.

Were you arguing that it should apply broadly?

And this was before -- let me make it clear.

The district court -- I say to my friends because I had forgotten this, the district court had ruled that this only applies to admissions. And there was a question -- the chairman of Reagan's commission on civil rights said, "We should get in on the side of the plaintiff here and we should appeal this to the Supreme Court or to a higher court and say, 'No, no. This applies across the board; this applies if you don't put money in sports programs, you don't put money in dormitories, et cetera.'"

What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?

ROBERTS: Senator, I was a staff lawyer. I didn't have a position.

The administration had a position, and the administration's position was the two-fold position that you set forth. First, Title IX applies. Second, it applies to the office, the admissions office...

BIDEN: Only to the office, right? It applies narrowly?

SPECTER: Now, wait a minute. Let him finish his answer, Senator Biden.

BIDEN: His answers are misleading, with all due respect.

SPECTER: Well...

(CROSSTALK)

SPECTER: Now, wait a minute, wait a minute.

They may be misleading, but they are his answers.

BIDEN: OK, fine.

SPECTER: You may finish, Judge Roberts.

BIDEN: Fire away. Fire away.

At least I'm misunderstanding your answer.

ROBERTS: With respect, they are my answers. And, with respect, they're not misleading, they're accurate.

BIDEN: I have a minute, 45 seconds.

ROBERTS: This is a (inaudible) dispute that was 20-some years ago. The effort was to interpret what this body, Congress, meant.

The administration position was: federal financial aid triggers coverage; it's limited to the admissions office. The United States Supreme Court agreed on both counts, and so I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.

BIDEN: Well, let me read you what wrote in that memo. You said you, quote, "strongly agreed."

Now, when my staff sends me a memo saying, "Senator, I recommend you do the following, and I strongly agree," that usually is a pretty good indication what they think.

Now, maybe they don't. Maybe they just like to use the word "strongly." They said "strongly agreed," usually means they agree, number one.

Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, "the federal government will be rummaging," quote, "willy-nilly through institutions."

So you expressed not only that you strongly agreed, but you thought that if you gave them this power to broadly interpret it to apply to dormitories and all these other things, that they'd rummage willy-nilly through institutions.

Seems to me you had a pretty strong view back then. Maybe you don't have it now.

ROBERTS: And the Supreme Court's conclusion was that that administration position was a correct reading of the law that this body passed.

So if the view was strongly held, it was because I thought that was a correct reading of the law. The Supreme Court concluded that it was a correct reading of the law.

BIDEN: Thanks, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you very much, Senator Biden. We will recess now until 2:15.

BLITZER: The end of this first round. Six senators so far out of 18 have asked questions, 30 minutes each. Still, they're going to take a little break now for a lunch. Jeff Greenfield, as we were watching this unfold this morning. Any single thought that stands out?

GREENFIELD: On the Biden exchanges with Ginsberg, two conflicting thoughts. One, that's the first time that I've seen Judge Roberts at all really pressed intellectually. When Biden said, look, Judge Ginsberg answered a lot of questions, and Roberts said, well, only about what she'd written about, and Biden said, that isn't right. And that seemed to be the first time that Roberts was thrown on his heels.

BLITZER: That said, I recall what some conservatives say, that there is no greater love affair in Washington than that between that between Senator Biden and the sound of his own voice, because there was a lot of attempts by the senator to go on and on, trying to explicate issues that he really didn't have time for.

And we heard the chairman, Senator Specter, admonish him, admonish Senator Kennedy a couple of times as well. Any single thought stands out in your mind, Jeff Toobin?

TOOBIN: Well, I still think my distinct memory and impression of this first morning is he has embraced the right to privacy. He has said the Constitution protects the right to privacy. That is -- there are many conservatives who don't. That doesn't necessarily mean he will follow that through by ruling that a right to privacy protects a woman's right to choose abortion, but it's the first step, and it is something that will reassure moderates, worry conservatives. Or he may just turn out to be just blowing smoke. But I mean, this was different than what a Robert Bork testified about -- to in 1987.

BLITZER: In that initial exchange with Senator Specter, he certainly positioned himself as a more moderate conservative.

We'll hold that thought. We're going to continue our coverage. History unfolding here in Washington. Confirmation hearings will continue. We'll take a quick break. We'll also check all the day's other developments, including what's going on in hurricane -- the aftermath of Hurricane Katrina.

Stay with us. (COMMERCIAL BREAK)

BLITZER: We've been watching the John Roberts confirmation hearings before the Senate Judiciary Committee. Six senators have now asked questions, 30 minutes each. There are 18 senators all together. You could do the math. You figure out that it's going to go well into the night. Right now, they're taking a break.

Jeff Greenfield, they'll be resuming their questioning about 2:00 p.m. Eastern. I want to speak a little bit about Senator Specter. Because his questioning at the beginning really set the stage. He was very forceful, very polite. But he certainly elicited some dramatic answers from John Roberts.

GREENFIELD: Let me give you a 20 second, I hope, wrap-up, of why that he is where he is. This is the man who helped beat Robert Bork, and conservatives were really quite angry about that. This is the man who helped get Clarence Thomas on the court when -- heavily after Anita Hill, and a lot of women's groups were angry about that. He almost lost his seat last year in a primary to a conservative on the grounds that he was a closet liberal, then came right back to Washington and said, I'm not sure we can confirm somebody who'd vote to overrule Roe, and almost lost the chairmanship which he just got.

My point about this is, this is a 75-year old guy battling -- who's battled several life-threatening diseases. And I think Senator Specter, as much as anyone else in this panel, is very much his own guy. He's concerned about the right to privacy. He's a supporter of Roe. He doesn't like the way the Supreme Court's been knocking down federal laws.

And so he, unlike some other people, he's not playing a party role here. And he's asking some of the toughest and most specific questions. This is a very smart guy, well-versed. And I think he actually -- he's emerged already as the guy who's the most interesting person to watch on this whole committee.

BLITZER: John Roberts, Jeff Toobin, is coming across, obviously, as we all knew, very, very, knowledgeable on all of these arcane issues, very important issues. But certainly to the American public, which is beginning to learn who this man is and hearing him for the first time, you have to be impressed by the depth of his knowledge on all these landmark decisions.

TOOBIN: The depth of his knowledge and also, certainly, in my experience with congressional hearings as a rule, the witness always looks better than the questioners. I mean, you know, a lot of these senators -- I thought Joe Biden in particular, just come off as kind of obnoxious, if you're not paying close attention to what's said. And Joe -- and John Roberts, merely by comparison, looks good.

However, in the Kennedy and Biden examinations, if people actually listened to the substance, I think people saw that, in fact, Roberts is not giving up much. He is, in fact, testifying less substantiatively than Ruth Bader Ginsburg did. He is -- he is, on some of the legal opinions that he gave in the Reagan White House, he's saying, look, it was the opinion of the Reagan administration. It wasn't me. So, we're not learning a lot about his substantiative views there.

BLITZER: Stand by for a moment. CNN's Jack Cafferty has been watching all of this together with us. He's in New York. And Jack, you've got a question you want our viewers to weigh in on, as well.

JACK CAFFERTY, CNN ANCHOR: Yes, we'll get to that in a second. I was just listening to Jeff's remarks. I watched Joe Biden's soliloquy on Judge Roberts. If the idea of these hearings is to elicit information from the man that they're considering voting on to be the Supreme Court justice, seems to me the way to do that is to be quiet and let the man talk.

If you put a stopwatch on the time for the Biden/Roberts exchange and compared the amount of time Senator Biden was talking with the amount of time that Judge Roberts talking, my sense is it would be about 85/15. Biden was doing all the talking. If you took the vote right now, it's game, set, match for Judge Roberts. Biden didn't lay a glove on him. He's asking about a 23-year-old memo that he wrote as a staff lawyer about alleged discrimination against female inmates at the prison down in Kentucky. And it seems to me that there are more pressing issues that they might be asking him about.

But this idea that they don't let the guy talk. They want to talk. I don't have much more time. Well, it's not your time, Senator. The time is for the public to listen to the views of a man who's going to possibly be the next Supreme Court justice. Just a thought. But, I mean, the senators just -- they just become characterizations of themselves in these things.

Anyway, one of the games within the game has to do with Judge Roberts' position on Roe V. Wade. Because of the divided nature of the court, there is some concern about how the entire court might view possibly overturning the law legalizing abortion, giving women the right to choose.

The game within the game is, they want him to indicate to them how he feels about it and how he might vote on it, should it ever come to that. And his job is to not give them any inkling whatsoever. Because in the event that it did come before the court, he wouldn't want his opinion out there ahead of time.

The question is this, and you have an hour or so to think about the answers and send them to us. Should Judge Roberts have to answer specific questions about cases such as Roe V. Wade. And you can weigh in on that at caffertyfile@CNN.com. And we'll read some of the responses maybe during the next break in the hearings, assuming the senators can be quiet long enough for us to get a word in.

BLITZER: All right, Jack. Thanks very much. The Roberts hearings are in a break right now. They'll resume shortly after 2:00 p.m. Eastern, in about an hour or so. We're going to be here in THE SITUATION ROOM. "LIVE FROM" with Kyra Phillips will pick up our coverage right after a short break.

(COMMERCIAL BREAK)

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