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Slate's Jurisprudence: Roberts' Legal Philosophy

MADELEINE BRAND, host:

Joining us now for some analysis of the hearings is Emily Bazelon. She writes on legal affairs for the online magazine Slate.

Hi, Emily.

EMILY BAZELON (Slate): Hi. Thanks for having me.

BRAND: You're welcome.

And as we just heard in Ari's piece, Judge Roberts would not commit to either upholding or overturning Roe v. Wade. So does that mean that we're back to square one in terms of knowing which way he would rule?

BAZELON: Yes. In fact, we may even be sort of before square one in the sense that when Roberts was nominated to his current position, he talked a little bit about Roe at the hearings and he said that Roe was a little more than settled law. And when he was asked this morning by Senator Specter to clarify that position, he said, well, he was really talking about how Roe had been reaffirmed by a 1992 decision called Casey, and he said, `Any judge wouldn't go straight to Roe; you would go to Casey,' which doesn't really say very much about the reasoning or the sort of heft of Roe itself.

BRAND: And what kind of insight are we getting into Roberts' judicial philosophy on day two of the hearings?

BAZELON: Well, Roberts said that he wants to resist labels. He said that, you know, most judges would probably take that stand. And then he called himself a modest judge and talked about how he appreciated that the judge's role as limited and that he should respect precedent, and then he waxed on a little bit about a give-and-take in terms of hearing about the views of his colleagues and how one thing he's learned on the bench is how important it is to hear the views of his colleagues. But that, of course, doesn't necessarily mean that he would change his mind based on what they're saying.

BRAND: Emily, Roberts has served in several Republican administrations. He was asked today about the question of whether Congress can force a president to end a war. Why was he asked that question?

BAZELON: Well, he had written a brief as a lawyer in the Reagan administration in the 1980s titled "War Powers Problem," and it was about a question of pension benefits, but it related to this issue of whether Congress could be part of a decision to end hostilities. And Senator Leahy was very concerned about the position Roberts had taken in the memo because he thought that it really went against what he thought was very clearly established law, that Congress has the power to end a war. And Leahy posed a hypothetical: `If Congress said, "President, you have to stop the war," would that be the way that the courts would have to rule?' and Roberts ducked. He did not want to answer that question. He said that an issue like that could come before a future Supreme Court, and Leahy sort of expressed surprise because he thought it was such a basic principle that it really wasn't open to question.

BRAND: And, Emily, there was a little back-and-forth between Senator Edward Kennedy, Democrat of Massachusetts, and Judge Roberts over civil rights. Can you go into that?

BAZELON: Well, Kennedy was questioning Roberts about, again, briefs he'd written during the Reagan administration. And Kennedy said that Roberts' briefs had taken a position that would, if it had become law, if it were still law, would allow universities to discriminate against girls in athletics and in the hiring of teachers and in accommodating the disabled, and he wanted to know--he wanted Roberts to disavow those positions. And Roberts said to Kennedy, `You have not accurately represented my position,' but then what he really wanted to emphasize was that he was not formulating policy; he was merely representing the administration's position. And I think in regards to all of these memos, that's going to be a key question, whether the Senate buys that notion that these were not necessarily Roberts' personal views but that he was sort of tasked with presenting them.

BRAND: Opinion and analysis from Emily Bazelon. She's the legal analyst for the online magazine Slate.

Thanks, Emily.

BAZELON: Thanks very much. Transcript provided by NPR, Copyright NPR.

Madeleine Brand
Madeleine Brand is the host of NPR’s newest and fastest-growing daily show, Day to Day. She conducts interviews with newsmakers (Iraqi politicians, US senators), entertainment figures (Bernardo Bertolluci, Phillip Seymour Hoffman, Ricky Gervais), and the everyday people affected by the news (an autoworker laid off at GM, a mother whose son was killed in Iraq).