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RUSH: We’re going to be talking about the first day of questioning of Judge John Roberts today. We have audio sound bites, some of the highlights from things that have occurred this morning. There aren’t a whole lot. There are a couple of interesting things. The energy, now, this is unprecedented. It seems to me, it’s been 19 years — no, since 1992, about 13 years since we had a hearing on the Supreme Court justice, whatever. The hearings are going on. Judge Roberts is answering questions at this very moment. Ted Kennedy has left the room and is now appearing on CNN analyzing while Roberts is answering questions.

One of the highlights we have is a Senator Kennedy question, and we will get to it. My memory, I’m going to have to go back and check, but to have a member of the committee on television, he’s on CNN right now, actually analyzing what’s going on and explaining his questioning while another senator is questioning Judge Roberts, shouldn’t Senator Kennedy be in the hearing room? See, I don’t think this thing has nearly the energy the Democrats hoped for, folks, to tell you the truth. You know what’s obvious? I mentioned yesterday that this guy is going to skunk the room just in terms of intellect, and when you get to Senator Leahy and Senator Kennedy, in fact many of the senators, they’re sitting there reading prepared question forms, no doubt prepared for them by their staff.

Roberts doesn’t appear to even have any notes in front of him like he didn’t yesterday when he gave that very eloquent opening statement, which I thought was excellent. I was more impressed than I thought I would be. It exceeded expectations. But it is clear that this guy can run rings around them. These senators are pretend lawyers, pretend judicial scholars, and they’re actually talking to a judicial scholar here, trying to trip him up, and it’s clear what the strategy is. He’s employing the Ginsburg rule without citing it.

He will not answer specific questions about rulings on specific cases nor hypothetical questions that might involve specific cases down the road. He has taken a different tack than Judge Bork took on the right to privacy, he’s acknowledged that there is one that you can infer from the Constitution based on the last 40 years of rulings. Big discussion of stare decisis with Senator Specter. Senator Specter led off the questioning, 98% of which was solely due to Roe vs. Wade and abortion. Senator Kennedy led off with Katrina and its aftermath and the Voting Rights Act, and when you hear the sound bite from this, it will be easier to just play that than try to explain to you what happened. So we have some highlights of it all coming up. But I just don’t think that the Democrats are getting the energy out of this that they hoped to get. Some of that is probably due to the hurricane sapping everybody’s emotional energy, but it is clear they’re dealing here with somebody who they’re not going to be able to trip up. I think what everybody is saying is probably true, that the purpose of these hearings for the Democrats will be to lay down markers for the next choice and to establish areas they can delve into and go into.

But Judge Roberts never takes his eyes off the senator who asked him the question when he’s answering the question. He doesn’t have to refer to notes. He corrected Senator Kennedy when Senator Kennedy misquoted him and took a portion of a memo he had written out of context. Senator Kennedy clearly not interested in an answer at that point, tried to just buffalo Judge Roberts and Arlen Specter, the chairman, butted in and said, “Hey, you asked a long question. Let him answer it.” Specter had to do that twice to Senator Kennedy. So it’s an amazing thing. You have all these senators, these blowhards, and you have all their staff behind them. You’ve got the senators who have their staff who write the questions, who write their positions, who write their statements, and then you’ve got one judge with one brain with no notes, out-dueling them all. It’s a bunch of pseudo-judicial scholars up against a legitimate one, and the unfairness and the imbalance is obvious.


RUSH: Folks, if you just landed here from Mars, and you turned on television and you were watching the confirmation hearings of John Roberts, you wouldn’t understand it, because if you listen to the questions that came from Democrats and some of the statements that they made yesterday in their opening statements, you find that Congress wants the Supreme Court to make law and they also want to stop the Supreme Court from overruling Congress. This is how convoluted the Democrats’ position has become. This term judicial activism – judicial activism is a term that we on the right have now apparently successfully used to describe the kind of judicial activity and temperament that liberals want. They want judges to use their personal policy preferences in deciding law. They want them to ignore the law and use their own personal policy preferences.

I’ve been telling you that judicial activism is all about getting liberal judges on the courts to institutionalize liberalism and therefore insulate it from the arena of debate, the arena of ideas and legislative debate. But at the same time, judicial review enters the picture, because at the same time they want this activism, they also want these same judges never to overturn congressional action or congressional laws, and so they have this dichotomy, or dilemma, actually. They’ve had to redefine what judicial activism is, and their judicial activism now, according to the left, is when a judge overturns the will of Congress. That’s how they’re getting around it. It’s just convoluted.

The point is they are on the run, and to me it’s an indication of victory, that the term judicial activism has hit home, and it is harming them, and so they’ve had to, in their own manner, change the definition, and it has shown up in the hearings here, and if you just landed from Mars you would swear these guys are contradicting themselves, the Democrats are, in their opening statements and questions, which there are a lot of contradictions. I want to illustrate. I mention again I’m watching Ted Kennedy question Judge Roberts, and I know Senator Kennedy’s getting old, and I know happy hour is still five hours away, but in my mind it was pathetic.

I mean, I’m watching Ted Kennedy read and interrupt, and I realize what the pictures that I see, each inquisitor (i.e., senator) has his or her huge staff, his or her research people, his or her statement and note takers and writers, and his or her special interest group. You multiply that times the number of senators there are on the committee. On the other side of the table you have Judge Roberts, who just sits there: One man, one brain, one memory bank. But the thing that’s funny is it’s a fair contest. Judge Roberts’ one brain is an equal match to all the brains of all the senators and all their staff and all their special interest groups and all the note takers and all the writers that they have. That’s one of the things that has struck me today. It’s not a matter of Judge Roberts being prepared. It doesn’t give him enough credit to say he’s prepared. He is who he is. I don’t think the man probably had to study much at all.

Probably didn’t cram at all for these hearings. He is who he is. He can show up and give a statement without notes. He can answer these questions without notes and without taking his eyes off people. He knows his stuff. He has studied a little bit every day of his life or a lot so he hasn’t had to cram, he hasn’t had to bone up, he hasn’t had a lot of coaching, probably hasn’t needed a lot of coaching, and we have — let’s see, one, two, three, four, five, six — we got eight bites from the hearings that started this morning. The most recent one was just a dandy. It happened right before the program started, a question that Senator Grassley asked about the role of judges in making law to right social wrongs, and it was just an absolutely brilliant answer, and it was shortly after that answer that Senator Kennedy showed up on CNN while Senator Grassley was still questioning Judge Roberts and Judge Roberts was still answering questions, and you have to wonder if that timing is coincidental.

Did CNN make the deal with Ted Kennedy to show up immediately after his remarks and after the press conference between the new Iraqi president and President Bush at the White House, go up to the CNN booth, wherever it is, and say, “We’ll get you in here, senator, talking about the hearings while the hearings are still going on.” While Judge Roberts is still answering questions posed by a Republican senator, Ted Kennedy is on CNN and I couldn’t hear it because the program was on, but I’ll guarantee you he was expanding on the points he was trying to make questioning Judge Roberts, since he bombed out in real time.


RUSH: All right, let’s go the audio sound bites just from things that have happened this morning. This is Arlen Specter’s question. He said, “Judge Roberts, in your confirmation hearing for the Circuit Court, your testimony read to the effect and has been widely quoted, ‘Roe is the settled law of the land.’ You mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?”

ROBERTS: Well, beyond that it’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited, and when they should not, and it is settled as a precedent of the court, yes.

RUSH: Now, so, Specter said, “I’m not going to ask you for your opinion on Roe vs. Wade,” and he got as close to asking that opinion without specifically doing so as he could. This answer caused many liberals and moderates to breathe a sigh of relief. “Whew! Okay. So he says it’s settled as precedent. We’re going to interpret that as meaning he would not vote to overturn Roe vs. Wade.” On the other hand some conservatives say, “Oh, no, he just said he’s not going to overturn Roe vs. Wade!” I think both sides are jumping to conclusions. I don’t think he said anything of the sort. To me, it’s obvious what Roberts is doing. He’s not going to answer any specific questions, and he knows this is simply one of the processes he has to go through to get to the court, and so you say what you have to say here. Like when he was asked about the right to privacy, it would be an absolutely idiotic thing to say, “No, I don’t see a right to privacy in the Constitution.” That would reignite the Bork hearings all over, and he’s not going to do that. “Yeah, there’s a right to privacy. You can infer it from many decisions that the court has handed down.” Bam! Done.

Because the bottom line is this, folks, and this is one of the problems with all these nominees no matter what who they are and who nominates them. The problem is, whatever happens in this hearing, or any other judge’s confirmation hearings, is irrelevant once they get to the bench, because it’s not possible to hold any of them accountable to what they say in these hearings. So I’ve often wondered. Okay, you want to get through this. If they say Roe vs. Wade is settled law, “As far as I can see, senator, yes,” blah, blah. Just say what you have to say to get up there, and then be who you are when you get there because nothing is going to hold you accountable. At the same time you don’t want to be dishonest but the same thing you don’t want to fall in any traps and you know the liberals are setting many traps here. Specter followed up with the question, “When you talk about your personal views and as they may relate to your own faith…”

This is the Catholic question, and I think some of this is a preemption on Senator Schumer, who, by the way, in his opening statement of ten minutes yesterday used personal pronouns 49 times, and this is even after rehearsing on Sunday for his performance. Anyway, Senator Specter said, “When you talk about your personal views and as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, ‘I do not speak for my church on public matters, and the church does not speak for me,’ close quote?”

ROBERTS: I agree with that, senator, yes.

SPECTER: And did you have that in mind when you said there’s nothing in my personal views that would prevent me from fully and faithfully applying the precedent as well as Casey?

ROBERTS: There is nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis.

RUSH: Okay, so there’s that. What do you do with that? Now you have to call him a liar, and they’re totally capable of this, I mean don’t misunderstand, they’re totally capable of it — Schumer especially. If Schumer starts talking about his deeply held personal beliefs, believe me, that’s code lingo for his Catholicism. Remember, Christianity, Catholicism, are the only two religions today that you can freely bash and make fun of and tell jokes about without anybody in the political correct movement condemning you.

Any other religion, faith, you don’t do it, but with Christianity, Catholicism, the whole batch of those denominations and so forth, feel free to rip whoever you want. So he’s simply said here, the view of the court, stare decisis, the precedents, these things aren’t going to matter and take precedence over had I personal religious beliefs. Then Specter said, “Okay, 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 a establishment of a religion and guarantee of free exercise, protects privacy in matters of conscience.

RUSH: So this again caused the libs and the moderates, the ones I saw were in the media, “Whew!” They sighed and they exhaled and they thought that this answer combined with his answer on stare decisis, settled law, coupled with this on the right to privacy. They think, “Okay, okay, Roe is safe. Roe is safe. This guy is not going to touch it, not going to vote to overturn it,” blah, blah, blah, blah, blah, blah, blah, blah. So this took place about a half hour, Senator Specter’s time was a half hour, and these are the three bites that were the highlights. Now we move on to Senator Depends, Pat “Leaky” Leahy, and he badgers Judge Roberts here about whether the Congress can order the president to end a war, and Roberts does a nice dance here. Here’s the question. “Your memo suggests that Congress is powerless to stop a president who’s going to conduct an unauthorized war. I’ll give you a hypothetical. Congress passes a law for all US forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, you must withdraw by a certain date. Now, is there any question in your mind, Judge Roberts, that the president would be bound to faithfully execute that law?”

ROBERTS: I don’t want to answer a particular hypothetical that could come before the court, but I’m happy to comment on the memorandum that you’re discussing —

LEAKY: No, wait a minute, that’s — isn’t this kind of horn book law? I don’t know of any case coming before the court. I mean, this is kind of horn book. The Congress says to the president, “You gotta get out,” and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn’t the president have to charge as he is under the Constitution to faithfully execute the law, why wouldn’t he have to follow that law?

ROBERTS: Well, senator, that issue and similar issues have in fact come up. There were, for example, lawsuits concerning the legality of the war in Vietnam, various efforts, and certainly the arguments will be made on the other side about the president’s authority, and that may well come before the court.

RUSH: And I’m not going to tell you what my decision would be because I haven’t heard it argued yet. I think the bait here, in addition to Leahy attempting to get Roberts to confirm or commit, rather, to one side of the question, the bait here is to get him drawn into a discussion of just what powers the commander-in-chief has. I think the hope was that — and this is where I think this is a mismatch. I think Leahy’s hope was that Roberts would say, “oh, no, the Congress couldn’t do that. I mean, the Constitution clearly says that the president is the commander-in-chief and is in charge of such decisions, and Congress can’t do this with legislation and so forth,” and I think actually hoping for some answer like that, but as you can see, Judge Roberts danced around him perfectly and to the point of frustration. Leahy badgered Roberts about whether Congress can order the president, as you heard, and Leahy had a follow-up answer to what Roberts’ answer was. This is it.

LEAKY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut out the funding —


LEAKY: — in April 1975 by a one-vote margin in the Armed Services Committee — I know because I was the newest member of the committee at the time — voted to not authorize the war any longer. But are you saying that Congress could not pass a law that we must withdraw forces?

ROBERTS: No, senator, I’m not.

RUSH: No, he didn’t say that at all. Oh, Leahy wanted him to say it so badly, and then Senator “Depends” decides to move into torture. He said, “I asked Attorney General Gonzales for his view of this memo and particularly this sweeping assertion of executive power which puts the president above a law. He never gave an answer on that, and that’s one of the reasons why many voted against his confirmation. So now let me ask you this. Do you believe the president has override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting this specific practice?”

ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution, and statutes. Now, there often arise issues where there’s a conflict between the legislature and the executive over an exercise of executive authority, asserted executive authority. The framework for analyzing that is, in the Youngstown Sheet & Tube case, the famous case coming out of President Truman’s seizure of the steel mills.

RUSH: When we come back we’ll let you here how Judge Roberts dealt with Senator Kennedy.


RUSH: Let’s move on with what we have. There are a lot of other things going on today, too, and as I say, the energy here is just not what it would have been without Hurricane Katrina. You can tell that the Democrats are not really that fired up here. Now, we haven’t seen Senator Schumer yet, and he’s the guy. He’s the spear chucker. He’s the guy that’s going to be throwing the heavy artillery. So we have to revise this prediction here until after that. If the Democrats do, in their mind, think that they have tripped — Senator “Turban,” too. If Senator Turban — Senator Turban and Schumer will be the ones to watch here, and they’re coming up later this afternoon, but even with them, we’re dealing with rank amateurs in both instances, particularly Turban.

It’s a tough contest, which of those two is the least qualified to be questioning. They’re pseudo-cholars, pseudo-judicial scholars, Durbin especially, but we’ll see what happens. But there just isn’t the make-or-break energy here that we all associated with it, and I think it’s not just Hurricane Katrina but it’s also the fact that this now is essentially the Rehnquist seat. So even if Roberts is confirmed, there will be no balance of power shift on the court, so the liberals are more prone to concede this one. Since they really don’t have any dirt on the guy anyway, concede this one and set markers for the next judge who is named by President Bush for confirmation, which would be for the O’Connor seat. All right, here is Senator Kennedy. Senator Kennedy read everything he said, probably prepared for him by his staff or People for the American Way or whoever. And Senator Kennedy, very long speech that sufficed as a question, and you will hear that he does not let Judge Roberts begin to answer the question, which causes Senator Specter to intercede.

The question got started with this. It’s a long question. This is basically the summary: Do you still believe today that it’s too onerous for the government to require universities that accept tuition payments from students or rely on federal grants and loans not to discriminate in any of their programs or activities?

ROBERTS: No, senator, and I did not back then. You have not accurately represented my position.

KENNEDY: These are your words.

SPECTER: Let him finish his answer.

ROBERTS: Senator, with respect —

SPECTER: Wait a minute, wait a minute. Senator Kennedy just provided a very, very long question. Now, let him answer the question.

ROBERTS: Senator, you did not accurately represent my position. The Grove City College case presented two separate questions, and it was a matter being litigated of course in the courts. The universities were arguing that they were not covered at all by the civil rights laws in question simply because their students had federal financial assistance and attended their universities. That was their first argument. The second argument was, even if they were covered, all that was covered was the admissions office and not other programs that themselves did not receive separate financial assistance. Our position, the position of the administration, and, again, that was the position I was advancing, I was not formulating policy, I was articulating and defending the administration position.

RUSH: Said every word of that without once consulting notes, staring straight at Senator Kennedy, who had to read everything — almost like he was reading a ransom note from Ralph Neas. “Senator, you better read this question or we’re going to be in heap big trouble.” So Kennedy reads the question, and it’s not even an informed question or properly informed question, and Judge Roberts just handled it deftly, and it’s been like that pretty much all morning long with questions that have come from Democrat senators.

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