The Kennedy Inquisition

Well, we just got our first taste of Sen. Kennedy’s questioning in this Roberts hearing, and he is playing his part (that being angry, indignant blowhard).

He asked several questions that were several minutes long. After each question he would allow Roberts no more than 15 seconds to answer before breaking in and accusing him of wanting to kill women and minorities, or some such nonsense. Here’s a paraphrased transcript, from memory, but it is likely pretty accurate:

Kennedy (with jowels flapping): Isn’t it true that in 1989 you wrote a memo calling for a national policy mandating discrimination against all minorities and women in every sphere of American life– in athletics, politics, education? Isn’t it true that, despite the fact that the Voting Rights Act was the law of the land, you wanted to see it renamed the Voting Whites Act? Even though it was the law of the land, Judge Roberts? The law of the land! Did I mention it was the law of the land? When you argued before the Supreme Court that women drivers should be summarily banned from American roadways, how did that make you feel?

Roberts (with a smile that shows he knows Kennedy has come into an intellectual gunfight armed with pepper spray): Actually, Senator, with all due respect, you’re misrepresenting my position in that case. I was actually articulating a position for the administration, as it was my job to do…

Kennedy (face reddening, or is that its normal color?): But it was the law of the land! And you were arguing for turning the clock back to John Roberts’ America, where women would not even be allowed to hold jobs in back alleys. Do we really want to go back there?!?

Specter (with the same look my mom used to have when I woudn’t stop hitting my little bro): Senator Kennedy, you have just asked a very long question. Please let Judge Roberts finish his answer.

Roberts: Thank you, Senator. As I was saying, I was not setting policy or writing law. The administration’s position was that the act in question in Mobile v. Such-and-Such that the protections in Sec. 2 be extended, but not in Sec. 5. Nuance, nuance, citing of cases, citing of legislation, other evidence to be quickly disregarded by Sen. Kennedy.

Kennedy: But don’t you really hate women and minorities? I mean, come on, tell the truth. You’re under oath, Judge Roberts!

Grassley’s on now, throwing softballs, but getting some interesting responses on exactly what Roberts’ judicial philosophy is.

You can check the real transcript and liveblogging at Blogs for Bush.

Confirm Them has a take on the privacy questioning from Specter. The exchanges on privacy and Roe v. Wade are in the extended entry.

Update: Great quote from Joe Biden (I know, I’m as suprised as you are). Working off Roberts’ umpire analogy (which Biden thinks isn’t apt) from yesterday:

“I’d rather be pitching to someone from Law & Order. Pitching to you is like pitching to Ken Griffey Jr.”

Update: Jeff Goldstein got a cool, leaked copy of Teddy’s crib notes.

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On privacy:

SPECTER: Judge Roberts, the change in positions have been frequently noted. Early on, in one of your memoranda, you had made a comment on the so-called right to privacy.

This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have — that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution.

Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.

It’s protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

It’s protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

And in addition, the court has — it was a series of decisions going back 80 years — has recognized that personal privacy is a component of the liberty protected by the due process clause.

The court has explained that the liberty protected is not limited to freedom from physical restraint and that it’s protected not simply procedurally, but as a substantive matter as well.

And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.

SPECTER: So that the views that you expressed back in 1981, raising an issue about amorphous and so-called, would not be the views you’d express today?

ROBERTS: Those views reflected the dean’s speech. If you read his speech, he’s quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean’s speech to the attorney general, but my views today are as I’ve just stated them.

SPECTER: OK.

So they weren’t necessarily your views then, but they certainly aren’t your views now?

ROBERTS: I think that’s fair, yes.

On Roe v. Wade:

SPECTER: With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda.

In the 1974 case, Michigan v. Tucker, which I’m sure you’re familiar with, he did not apply Miranda — without going into the technical reason there.

But the issue came back to the court in U.S. v. Dickerson in the year 2000. And the chief justice decided that Miranda should be upheld, and he used this language: that it became, quote, so embedded in routine police practice to the point where the warnings have become a part of our national culture, close quote.

Do you think that that kind of a principle would be applicable to a woman’s right to choose as embodied in Roe v. Wade?

ROBERTS: Well, I think those are some of the considerations the court applied in Casey when it applied stare decisis to Roe. And those were certainly the considerations that the chief justice focused on in Dickerson.

I doubt that his views of the underlying correctness of Miranda had changed, but it was a different question in Dickerson. It wasn’t whether Miranda was right; it was whether Miranda should be overruled at this stage.

And the chief applied and addressed that separate question, distinct from any of his views on whether Miranda was correct or not when decided. And that’s the approach the court follows under principles of stare decisis.

SPECTER: Well, that’s the analogy I’m looking for in Roe v. Wade. Might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming, quote, embedded in routine police practices to the point where the warnings have become a part of our national culture.

And the question, by analogy: Whether a woman’s right to choose is so embedded that it’s become a part of our national culture; what do you think?

ROBERTS: Well, I think that gets to the application of the principles in a particular case. And based on my review of the prior transcripts of every nominee sitting on the court today, that’s where they’ve generally declined to answer: when it gets to the application of legal principles to particular cases.

I would repeat that the court has already applied the principles of stare decisis to Roe in the Casey decision. And that stands as a precedent of the court, as well.

SPECTER: So you’re not bound to follow it but it’s pretty impressive logic?

ROBERTS: In the Casey decision — well, I mean…

SPECTER: No. I’m talking about Chief Justice Rehnquist on Miranda.

ROBERTS: I think in that case, the chief’s explanation of why they weren’t going to revisit Miranda — it persuaded, I believe, all but one member of the court, and I’m sure it had added persuasive effect because of the chief’s prior views on Miranda itself.

It is a recognition of some of the things we’ve been talking about — the values of stare decisis. I don’t think, again, that there’s any doubt what the chief — certainly what he thought. He told us what he thought about Miranda. I doubt that those views have changed.

But there are other considerations that come into play when you’re asked to revisit a precedent of the court. And those are the things we’ve talked about. And they’re laid out, again, in Dickerson and other cases of the court: Payne v. Tennessee, for example, Agostini a variety of decisions where the court has explained when it will revisit a precedent and when it will not.

And, of course, the decisions come out both ways. In Payne v. Tennessee, the court went through the analyses. It was a case about whether victims could testify at sentencing. The precedent said no, and they overruled those.