Nightline: Sunstein on the President's Nominee
TED KOPPEL, ABC NEWS
July 19th, 2005. I'm Ted Koppel and this is "Nightline." If there is any surprise about the President's nominee for the Supreme Court, it is that he is male and he is white.
PRESIDENT GEORGE W. BUSH, UNITED STATES
He has the qualities Americans expect in a judge.
SENATOR CHARLES SCHUMER,
DEMOCRAT, JUDICIARY COMMITTEE
He's only had two years where he's been a judge.
He's very conservative.
SENATOR PATRICK LEAHY,
DEMOCRAT, JUDICIARY COMMITTEE
We need to consider this nomination as thoroughly and carefully as the American people deserve.
FORMER DEPUTY WHITE HOUSE COUNSEL
It's really hard to come up with a name that has more respect attached to it than John Roberts.
Tonight, "The President's Choice." Is Judge John Roberts the path of least resistance?
graphics: the president's choice
(Off Camera) There is nothing quite like it in American public life. Once a man or woman is confirmed as an associate justice of the Supreme Court, he or she takes on an almost mystical aura. Supreme Court proceedings are never seen on television. The justices themselves rarely speak in public, even more rarely on issues of substance. All but invisible within the temple-like structure of the Supreme Court, the nine justices issue rulings that influence all of our lives. They are all but untouchable, priests of American law. Before the President's nominee, John Roberts, can take his place on that lofty bench, however, he will have to run the often humbling gauntlet of the Senate Judiciary Committee. His adversaries are already gathering rocks. Example? This fund-raising message already running on a pro-choice web-site this evening. "By nominating John Roberts, George Bush has issued a slap in the face to every American who values personal privacy and a woman's right to choose." And in an accompanying box, it says, "help fund the fight. Click here." So, will there be a fight? Oh, yes. Unavoidable these days. John Roberts is unmistakably a conservative but he also appears to have many friends and admirers, Democrats among them. Some more background now, from my "Nightline" colleague, Chris Bury.
CHRIS BURY, ABC NEWS
(Voice Over) No doubt, relishing the suspense, the President had held his cards closely to ensure the maximum prime time impact for his first Supreme Court nominee.
PRESIDENT GEORGE W. BUSH
And so, a nominee to that court must be a person of superb credentials and the highest integrity. A person who will faithfully apply the Constitution, and keep our founding promise of equal justice under law. I have found such a person in Judge John Roberts.
For the President, one advantage to this choice, was obvious. John G. Roberts at 50, would be the youngest justice and the President's best chance for the President to influence the court for generations to come.
JUDGE JOHN ROBERTS, SUPREME COURT NOMINEE
It is both an honor and very humbling to be nominated to serve on the Supreme Court. Before I became a Judge, my law practice consisted largely of arguing cases before the court. That experience left me with a profound appreciation for the role of the court in our constitutional democracy. And a deep regard for the court as an institution.
(Voice Over) Perhaps most striking, beyond Roberts' relative youth, is that he is a white male, chosen after the President interviewed four other candidates and encouraged speculation he might appoint the first Hispanic, Attorney General Gonzales.
PRESIDENT GEORGE W. BUSH
One way to get in the papers is to stand by Gonzales.
(Voice Over) What's more, Laura Bush, on her recent trip to Africa, made plain her thoughts on another woman to replace Sandra Day O'Connor.
LAURA BUSH, FIRST LADY
I would really like for him to name another woman.
(Voice Over) Which led to intense speculation about such judges as Edith Brown Clement, Edith Jones, and Priscilla Owen.
THOMAS GOLDSTEIN, SUPREME COURT LITIGATOR
This is a serious surprise. There was a lot of speculation we were gonna get a woman to replace Sandra Day O'Connor, or at least a conservative with a long paper trail. Instead, we got someone who has been a judge for a relatively short time, who's a male.
(Voice Over) In fact, Roberts is well-known and generally relate-regarded in conservative legal circles. A graduate of Harvard law school, he clerked for Chief Justice Rehnquist, and served as a government lawyer in the Reagan and first Bush Administrations. But his record as a judge is relatively limited, having served on the US court of appeals in Washington only since 2003. Tonight, he appeared very much the photogenic candidate. Accompanied by his wife, and two, young children, one of them a bit rambunctious. Long-time friends described him as a measured and balanced lawyer's lawyer, whose personal opinions are rarely on display from the bench. An indication that the Administration wants to avoid a nasty confrontation.
You will learn over the next few days that he is very judicious and careful and reserved. He is not an ideologue who has felt compelled to air his personal views to anybody who will listen over the past 20 years.
(Voice Over) But Roberts has been involved in several controversial rulings. Most recently, he strongly supported the Bush Administration's authority to establish military tribunals for Guantanamo detainees, including Salim Hamdan (PH), accused of being Osama Bin Laden's driver.
EMILY BAZELON, "SLATE" SENIOR EDITOR
The question is whether the President can try him before a special military tribunal that doesn't provide for basic due process protections, like the right to be present and the right to have a lawyer. And Roberts didn't write the opinion in that decision but he joined an opinion that gives the President broad authority. And which said that Mr. Hamdan does not have the right to sue under the Geneva Convention, to petition in Federal court for his release.
(Voice Over) On the big, divisive social questions, Roberts deeply-held beliefs are not well-known. But he has argued for Republican presidents against certain abortion rights, including a case banning doctors who receive Federal funds from counseling women on ending their pregnancy.
Opponents really have only one thing that they can point to. And that is a brief that he filed on behalf of the Reagan Administration, in a case involving abortion in the Supreme Court, in which he said, on behalf of the Reagan Administration, that Roe V. Wade was wrongly decided. But he's never said whether that was his own personal view of the law.
(Voice Over) No sooner had the President named Roberts than key senators engaged on their first skirmish on his confirmation prospects.
SENATOR PATRICK LEAHY
No one is entitled to a free pass to a lifetime appointment to the Supreme Court.
SENATOR CHARLES SCHUMER
You've got to start from scratch. This Supreme Court is far different than the court of appeals. The Supreme Court makes law. We hope they do it by interpreting precedent and following the legislature. But they make law.
SENATOR JOHN CORNYN,
REPUBLICAN, JUDICIARY COMMITTEE
I don't understand why someone would say you would have to start over from scratch, unless they're more interested in delay and obstruction than they are in doing the job of advice and consent.
TELEVISION ADVERTISEMENT VOICE, MALE
Will President Bush follow history, choosing a judge who protects our fundamental rights and freedoms?
TELEVISION ADVERTISEMENT VOICE, FEMALE
Some Democrats will attack any Supreme Court nominee.
(Voice Over) Interest groups of every stripe have long been gearing up, raising tens of millions of dollars for an epic confirmation battle that now seems less likely. Roberts has already been easily confirmed once by the Senate. And he's earned the respect of such prominent Democrats as former Solicitor General Walter Dellinger, an ABC News consultant.
WALTER DELLINGER, FORMER SOLICITOR GENERAL
Although John is thought to be very, very conservative, he has friends and admirers across the political spectrum. The first Supreme Court case I argued was against John Roberts, who was opposing counsel when he was Deputy Solicitor General. I was anxiously awaiting the result of the case. And the first phone call I got came from John Roberts, who called to tell me that I had won 5- 4. And that's the sort of thing that people remember about John.
(Voice Over) As the President's nominee arrived at his home in Washington tonight, dozens of Internet sites were already buzzing with instant reaction, the most intense of which concerned Roberts' potential impact on future abortion cases.
(Off Camera) And perhaps it is fitting that the man who would become the youngest justice on this court, will be the first in history to have his confirmation debated on-line. This is Chris Bury for "Nightline" in Washington.
(Off Camera) Can we expect surprises from a Justice Roberts? Two former Supreme Court clerks and a veteran correspondent at the high court join me in a moment.
graphics: abc news: nightline
This is ABC News "Nightline." Brought to you by ...
(Off Camera) Joining me now, live from Chicago, Cass Sunstein, professor at the University of Chicago law school, and former clerk for Supreme Court Justice Thurgood Marshall. And here in Washington, Brad Berenson, associate White House counsel during the first Bush term. He clerked for Supreme Court Justice Anthony Kennedy. Mr. Berenson is also an ABC News consultant. And Nina Totenberg, an old friend, long-time legal affairs correspondent for National Public Radio. Brad Berenson, you're one of the few people, you and, and Cass Sunstein, who have seen Supreme Court justices when their robes are still hanging behind the door. Take us behind those, those white columns for a moment. Who goes on back there?
BRAD BERENSON, FORMER WHITE HOUSE COUNSEL
Well, I'm, I'm fond of saying that the Supreme Court is really the one institution that I've been a part of that functions inside almost exactly the way people outside think it ought to. It's a very rarified atmosphere. A very quiet atmosphere. Almost all of the focus is on legal argumentation. It's, it's cloistered. The justices work closely with their law clerks. They interact with one another principally through written legal memoranda, sometimes through their clerks. And on rarer occasions, through face-to-face interaction at the court's periodic conferences or otherwise. But it's really a very academic feeling, intellectual institution.
(Off Camera) Cass Sunstein, what happens to a - to a freshman, an associate justice when he comes in there the first day, the first week, the first month? Is there a -is there a "get the new kid" attitude at all?
PROFESSOR CASS SUNSTEIN,
UNIVERSITY OF CHICAGO LAW SCHOOL
Well, in conference they have to close the door, when they all get together to decide the cases. And they also have to bring the coffee. So, Justice Breyer's going to be happy that he doesn't have to bring the coffee anymore.
(Off Camera) So, quite literally, seniority does have rank and privilege?
PROFESSOR CASS SUNSTEIN
Seniority matters. There will some be ribbing. 50 qualifies as young in these circles. So, he'll probably be teased a lot. He's very well-known, Judge Roberts is, among the Supreme Court justices. So, if he's confirmed, I think there will be a lot of warmth toward him.
(Off Camera) I have been told, Nina, by someone who keeps track of this kind of thing, and you've been covering the court for years and years now, that this may be the first time that a man who was a clerk will actually be sitting on the same court as the man for whom he clerked.
NINA TOTENBERG, NATIONAL PUBLIC RADIO
I'm not sure that's true. But it's certainly possible.
(Off Camera) It sounds good, doesn't it?
It sounds good. And, and of course, we've got a number of months to go, so you never can tell. But, but John Roberts is one of these extraordinary men who combines an incredible degree of brilliance. In a room of smart people, as Brad said to me earlier tonight, he's the smartest guy in the room but you don't feel like it. I've known him for years and he doesn't -he's not the kind of person that lords it over you. When you combine that kind of just niceness with that kind of intellectual rigor, you're talking about a potential for enormous influence.
(Off Camera) And yet, the fact of the matter is, Cass Sunstein, that this is a man who is -if he is as conservative as he appears to be, could move the court in a whole different direction from where it's gone these last few years.
PROFESSOR CASS SUNSTEIN
It's true, so it may be a really ingenious choice on the President's part. What we don't know is whether he's your father's kind of conservative. That is, someone who values stability in the law. A little bit like Justice O'Connor, maybe, who doesn't like a mass of change, who cares a lot about precedent. Or whether he's someone more like Justice Scalia or Justice Thomas, who wants to move the court in a pretty strong direction and who thinks the court has often gone off the deep end in the last few years. What we don't know about Judge Roberts is which kind of conservative he really is.
(Off Camera) What we saw happening, Brad, with Justice O'Connor, of course, over the last few years, is that gradually, over a period of years, she moved more and more in those 5-4 decisions with some of her more liberal colleagues.
(Off Camera) Is there any way of ever knowing with a nominee, before the fact, whether something like that is possible or even likely?
There isn't any way of knowing for sure. But conservatives have often remarked that when justices change or "grow" in office, they often tend to do so in a leftward direction. And that the single best circumstantial guarantee or immunization against that kind of effect, seems to be significant service in the executive branch in Washington. For whatever reason. That's true of Chief Justice Rehnquist, of Justice Scalia and Justice Thomas, the three conservatives. All had served in Republican administrations in senior positions. And in that sense, John Roberts fits in a that mold of a justice whose views are well-formed, who's been tempered by the fire of political combat in Washington. And who is less likely than other kinds of nominees may have been to drift over time.
(Off Camera) Just very quickly, before we take a break, why would that inoculate someone against that leftward drift that you were talking about?
You know, it's, it's an interesting question. I think that most people feel that some inoculation is gained through serving in the executive branch because one comes to have greater certainty about where one stands and one's own beliefs. The siren song of approval from the media elites or the Washington establishment is less alluring for someone who has served in a senior position in a Republican Administration. But it's a -it's a deep question. And I'm not sure there's an easy answer to it.
(Off Camera) The President has made it very clear that he'd like to see John Roberts sitting on the bench when the court comes in that first Monday in October. When we come back, Nina, I'll ask you how likely it is that he'll meet that deadline. Back in a moment.
(Off Camera) Joining me live once again, Cass Sunstein, Brad Berenson and Nina Totenberg. Nina, as Chris Bury was mentioning a little earlier on, the special interest groups have gathered tens of millions of dollars. Do they save it for Judge Rehnquist's ultimate successor or do they use it?
I bet they spend a good deal of it. It's pretty hard to hold on to that kind of money. But, but I think that barring unforeseen disclosures, and we've all been here when there have -those disclosures have occurred. But barring those unforeseen disclosures, this is a very shrewd pick because John Roberts has a huge number of powerful Democratic establishment, legal friends who will go to bat for him. And there are already key senators who have mentioned his name as the kind of person that they could vote for. So, Senator Specter, the chairman of the Judiciary Committee intends to hold hearings in early September. And as I said, I would -I couldn't imagine, right now, that he -that John Roberts won't be on the bench on the first Monday in October. But, you never know.
(Off Camera) Cass Sunstein, as, as you look at him simply as a candidate, intellectually he seems to be impeccable. Is there anything you see that, that would in any way disqualify him or make him less than a - than a sterling choice?
PROFESSOR CASS SUNSTEIN
I think in terms of character and ability, he's a terrific choice. Some people think that we have a process to go through. And we do. I think they'll think there are some warning flags. I'm not sure I agree. One might be a ruling he issued -an opinion he wrote involving the Endangered Species Act where he suggested it might be unconstitutional. He did, if I'm not mistaken, say in a brief for the government, that he thought Roe against Wade was wrong. That shouldn't be held against him I don't think. But the question really is what sort of process will we have? Not whether there are warning flags. And it's perfectly legitimate for people of all sides, Republicans as well as Democrats, people in the middle too, to ask exactly what kind of conservative is he? Does he believe in strict instruction? Does he believe that the Constitution means what it went when it was originally ratified, as Justice Thomas does? That's a very controversial position. We don't really know if Judge Roberts believes that. So, I think instead of focusing, I guess I'd say, on whether he's going to be confirmed or not, we should cherish the fact that we have a process which is magnificently democratic, in can which a Supreme Court appointee can be vetted and all sides can have a chance to talk to him and get a sense of what he generally thinks.
(Off Camera) It has been hugely political and at times terribly ugly over these last few years, going back I suppose to the nomination of Judge Bork and, and what has followed. So, I suppose the question is, yes, the process that is in place is a - is a wonderful process. But has it become so politicized that, that both sides won't be able to restrain themselves?
PROFESSOR CASS SUNSTEIN
Possibly. And I think Judge Bork was treated in some ways unfairly. He has a legitimate complaint. And others, too. But the President has called for a dignified process. Those who want to raise some questions about Judge Roberts have spoken with dignity and circumspection. So, I think while the interest groups will be charged up and websites will be buzzing, we have every reason to expect that the public representatives will focus on the substance. They'll ask what matters. They won't spend a whole lot of time on the fact that -he's from Indiana, as wonderful as that is. They'll address the questions that really ought to be answered.
(Off Camera) Brad, in speaking to one of my colleagues earlier, you had some interesting observations on the impact one man or woman can have. Talk about that for a moment.
Well, in conversations that I've had with, with some of the justices, they have suggested to me that the interpersonal dynamic among the nine on the court is such a, a fragile and complex thing, that altering even one member of the court can, in many subtle yet important ways, change the way the court goes about its business. My own exposure to the court was obviously limited to one year, in which there were no changes in personnel. But the justices themselves seem to feel that it makes a difference. And I think Nina's exactly right, that John Roberts is a known quantity to all of the sitting justices. And will be welcomed very warmly by them.
(Off Camera) From what you have observed over the years, Nina, of Justice O'Connor and what you know of John Roberts, what kind of a sort of chemical change will take place in the court, do you think?
Well, let's start with the obvious. He's hardly a woman. And this means that the court now has only one woman. And there are certain things that people do differently. Justice Kennedy said recently that he didn't understand why it made such a difference when there was a change of one person. That Justice White had told him when he came to the court, said this makes a huge difference, changes everything, scrambles up the whole dynamic every time there's one new person. And Justice Kennedy said, I don't understand why it's that way but it is that way. And it can be that way, you know, for the good and for the bad. And, and I can't imagine that John Roberts, who is the most affable of persons, would not -would ruffle anybody's feathers. But it sure is going to make a big difference.
(Off Camera) And we're gonna have to leave it on that note, Nina. Nina Totenberg, Cass Sunstein, Brad Berenson, thank you all very much indeed.
(Off Camera) When we come back, a lighter note. The Roberts family as seen by the camera that didn't go out on the air this evening.
(Off Camera) We close on a somewhat lighter note. As the President was making his announcement this evening, introducing John Roberts to the nation at large, you would have had to know what was going on immediately to his left. John Roberts' young son was dancing around. And you have to admire the President's concentration because at no time, if you were watching him,