Review of Records

This is a partial transcript of "Special Report With Brit Hume," July 27, 2005, that has been edited for clarity.

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BRIT HUME, HOST: For the past two days, a stream of reporters, and other interested parties, have been hunched over tables in the National Archives (search) office here, pouring over documents related to Supreme Court nominee John Roberts’ service during the Reagan administration. FOX News correspondent Meghan Kendall, herself a lawyer, has been among them.

So Megyn, what do these papers tell us about what sort of guy — what personality is John Roberts?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: I’ll tell you, Brit. It was a fascinating read, because you really did get a better flavor for who this man is. And keep in mind, he was only 26 years old when much of these documents were written.

The overwhelming sense I got from reading them was, not only is he obviously bright, but he’s very confident. There are many instances in which he challenged his superiors. And he was working as a special assistant to Attorney General William French Smith (search) back then.

But also very witty. Very, sort of, edgy, kind of funny, and not afraid to, you know, take himself not too seriously.

HUME: Example?

KENDALL: Well, there was one instance in which one group was pushing the attorney general, William French Smith, to oppose a bill relating to school prayer, and the attorney general had said to Roberts, you know, sort of, deal with this politely. Sort of, you know, respond in a benign way. And so he drafted this memo, which he circulated internally, asking...

HUME: This is a draft letter in response?

KENDALL: Yes, exactly. And he circulated it to his superiors within the Justice Department asking, "Is this draft response okay? i.e., does it you succeed in saying nothing at all?" Which, I can tell you, having been a lawyer, is not uncommon. And then there was another...

HUME: You mean to write a letter where you try to say nothing, in a lawyerly way?

KENDALL: Yes, exactly. You have to put a lot of heretofores in there. And then in 1983, after a Supreme Court decision that related a little bit separation of powers issues, they got a letter from then-Congressman Elliott Levitas (search).

HUME: Levitas. This is Georgia.

KENDALL: Asking for a meeting with president Reagan to discuss power sharing within the federal government. And Roberts’ internal response within the DOJ was to point out there already has, of course, been a conference on power sharing.

It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell Levitas about it and the report it issued, meaning, presumably, the Constitution.

HUME: The Constitution of the United States of America. Everybody is going to want to know, and they’re going to ask the question many different ways, how he might come out if he ever got a crack at a subsequent ruling on Roe v. Wade (search).

Now, he has said that it’s the settled law of the land. He said that when he was up to be an appellate judge. Do we find anything in these papers about his view of that?

KENDALL: They’re not all that illuminating on Roberts’ view on abortion or on Roe v. Wade. In fact — I mean, you can imagine with all those reporters poring over these documents that was one of the hot-button issues everybody was looking for. Very little was said.

There were some documents from other administration officials talking about Roe v. Wade, but not so much from Roberts. One document that could potentially become an issue from those who wish to attack Roberts was one in which he was referencing a meeting of various legal scholars in which they were discussing judicial activism. And he pointed out...

HUME: In the context of Roe v. Wade.

KENDALL: Exactly. And they were, sort of, just calling for judicial — for judges to dial it back a notch in terms of what they do on the bench. These scholars were.

And Roberts is talking about these scholar views, and he says that most of the participants at this meeting recognize the serious problem in the current exercise of judicial power, epitomized by what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade.

HUME: But he’s talking there about their views, of which he’s summarizing. Not his own.

KENDALL: Exactly right. So, you know, you don’t know whether his detractors will try to make that into his view.

HUME: Well now, we know that Judge Roberts is a Catholic and a serious one. We know that his wife is a Catholic and is strongly opposed to abortion. We can probably infer that on a personal level, he may well be opposed to abortion.

After all, Senator Kennedy (search) says he is as well, on a personal level. Do we get any sense about how that might affect, or is thinking about how that might or should affect, his judicial activities in that regard?

KENDALL: Well, there is a clue in some of these documents. Roberts talks a little bit about ideology and how that plays into a judge’s decision making on the bench. I think we have a quote on this particular issue.

He was preparing some remarks for the attorney general before the attorney general was speaking to conservative media groups, and they expected some criticism on federal judges and activism. And he said it really should not matter what the personal ideology of our appointees, meaning judicial appointees, may be. So long as they recognize that their ideologies should have no role in the decisional process.

HUME: There is some thought tonight that, because of some document there that we may get the allegation that Roberts is in favor of stripping the Supreme Court, or has been in favor of stripping the Supreme Court, of its appellate jurisdiction in a number of areas. School prayer, perhaps abortion. What did you find out about that?

KENDALL: I don’t think that’s entirely accurate. Back when he was at the attorney general’s office, there were at least 20 bills pending in Congress that would do exactly that. That would have stripped the Supreme Court of appellate jurisdiction on certain hot-button issues.

HUME: Now, the Constitution gives the Congress some authority over jurisdiction of the court?

KENDALL: It does. Yes, of course. And the question was, how much authority? Some of these congressmen wanted to withdraw the Supreme Court’s ability to review cases involving, say, school prayer. He wrote a memo saying he thinks that would be constitutional to do, but another document released later — let me start with this.

HUME: Quickly.

KENDALL: First, he said that it would take real courage to read the Constitution as it should be read. And then later, he said that he determined that such bills that would divest the Supreme Court of jurisdiction, were within the constitutional power of Congress, but also concluded that such bills were bad policy and should be opposed on policy grounds.

HUME: As the chairman said, such bills are within the Constitution, but also — right.

KENDALL: One question is whether it’s constitutional. A different question, whether he believed it was good policy.

HUME: Now, I want to assume that he’ll be asked about this and that this is what he’ll say. I mean, I guess he can argue that this is what he thought then, I suppose. I suppose we’re going to hear about this.

KENDALL: Yes, well. Views change, I’m sure. You know, I have to tell you that there was no huge fodder in there for a major attack. I anticipate a focus on that document.

HUME: All right, Meghan. Thank you for this. Major help.

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