This is a partial transcript from "On the Record," September 12, 2005, that has been edited for clarity.


JUDGE JOHN ROBERTS, CHIEF JUSTICE NOMINEE: If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.


GRETA VAN SUSTEREN, HOST: Supreme Court nominee John Roberts says he has no agenda and no platform. Will the 50-year-old become the youngest chief justice in two centuries? Joining us live from Pepperdine Law School is the dean, Judge Ken Starr. Judge Starr clerked for Chief Justice Warren Burger and argued 25 cases before the United States Supreme Court when he was solicitor general. Welcome, Ken.

KEN STARR, PEPPERDINE LAW SCHOOL DEAN: Oh, it's good to be back, Greta.

VAN SUSTEREN: Ken, tell me, does it make a difference if John Roberts — who has now been nominated for the chief justice — if he's the chief justice versus the associate justice? What difference does that make to the American people, if any?

STARR: It makes a difference in terms of the basic principle of leadership. The chief justice is given a wonderful opportunity. Some succeed, others don't at leading the Court. Each justice, of course, has his or her own vote, so the chief only gets one vote. But the chief assigns opinions but also leads the discussion, and that leading of the discussion helps set the tone for the Court's conference, which resolves the cases, at least tentatively. So it's very important.

VAN SUSTEREN: Does it make for more likelihood that instead of having a 5-4 decision, you might have a 7-2 decision? And does that really make a difference if there's a greater majority on any given opinion?

STARR: It certainly could. Again, some chiefs are effective leaders. The classic example, Greta, as you know, is Chief Justice Earl Warren bringing together a divided Court in Brown v. Board of Education, the epic case that declared segregated schools unconstitutional. The Court was not unanimous when they began, and the case was re-argued. But Chief Justice Warren led the Court as chief, and eventually, as we know from history, out of that disunity came a single unified opinion for a unanimous Court, and that made a huge difference.

It also, just in the less epic cases, is very important for the Court to achieve as much unity as possible, although Miranda was 5-to-4, and it's been the law of the land for now almost 40 years, or more than 40 years now. So a 5-to-4 decision is still a decision of the Supreme Court, but I think the country feels a little bit better if it's not so sharply divided, if it's more like 6-3 or 7-to-2.

VAN SUSTEREN: What about the scrutiny by the United States Senate? Should it be the same whether you're nominated for the United States court of appeals, an associate justice of the Supreme Court, or even a chief justice? Should that be the identical scrutiny, in your opinion?

STARR: No, I think there is a stepped-up level of interest and therefore scrutiny for someone who's going to serve on the Supreme Court of the United States. The courts of appeals — I was privileged to serve for five years on a court of appeals — are all very important, but nothing is as important in our system than the Supreme Court of the United States. So intense scrutiny is appropriate.

I don't think one thing should change, and that is asking a justice nominee or a judge nominee how he or she would vote on a particular case or would resolve a particular issue. I think for any judge, because of the importance of judicial independence from the political process, should not be put in that position. But if he or she is, if Judge Roberts now is asked, How would you vote on a particular issue or on a particular case, I think just as he would have done in his nomination proceedings for the court of appeals, he should respectfully decline to answer.

VAN SUSTEREN: What about the situation where you have, like, the issue of choice or abortion and the whole issue of privacy? Because sometimes precedents do get overturned. Plessy v. Ferguson and Brown v. Board of Education — I mean, that was a big — that was an overruling. Should he be asked whether he would overrule Roe v. Wade?

STARR: I don't think he should be asked that, but if he is, Greta, I just think he just should again respectfully say no. This is the tradition. It's not a new rule, it's the tradition that is borne of concerns about judicial independence and insulating our judges and our justices from the political process. And when today Judge Roberts said, I'm going to listen to the arguments of the parties — he's going to read the briefs, he's going to listen to the views of his colleagues and the like — that means he's coming to it with an open mind, as opposed to, Now, what did I promise Senator X or Senator Y during the course of my confirmation hearings? And traditionally, that has been respected by the United States Senate, and I hope that tradition holds true.

VAN SUSTEREN: We only have about 30 seconds left. How interested are the students at Pepperdine? Do they realize how important a Supreme Court appointment is?

STARR: Well, they're doing their work, but they're very much monitoring what's going on, and we talk about it in the hallways a lot, so yes, they are really interested, Greta. And thanks for making sure that the American people know a little bit more about this very important subject.

VAN SUSTEREN: You know, it's hugely important, and it's so hard, you know, because it seems so remote, the Supreme Court, but it's so hugely important to all of us. Ken, thank you. Nice to see you.

Coming up: What is the toughest question Judge Roberts faces tomorrow? Is there one question he hopes he won't get? Constitutional scholar Susan Estrich is coming up.


VAN SUSTEREN: If John Roberts is confirmed as Chief Justice of the United States, he could lead the Court for generations. USC law professor Susan Estrich joins us live from Los Angeles. And I might add that Susan was a law clerk for current Justice John Paul Stevens. Welcome, Susan.


VAN SUSTEREN: All right, Susan, the president has the constitutional duty to appoint someone to the Supreme Court, but it's with the advice and the consent of the Senate. What does that mean? What is advice and consent?

ESTRICH: It means getting enough votes so that you get the guy through. If you won the election and you control the Senate, it means you're probably going to get who you want. But the process is an opportunity for the opposition party to make a lot of noise, which is going to happen tomorrow.

VAN SUSTEREN: If you are a United States senator and you take the advice and consent very seriously, and I suspect that each does. What is advice and consent? I mean, what are you looking for?

ESTRICH: Well, you know, in this case, let's be serious. This guy is, in addition to being the luckiest human being in America, obviously incredibly smart. So to the question of, Does he have the academic qualifications to be Supreme Court chief justice? The answer is yes. And to the question, Is he an effective advocate for himself? Is he going to do incredibly well tomorrow at the question and answer session? The answer is also yes.

So the only thing that's going to happen tomorrow that's worth watching, other than a superb performance by soon to be Chief Justice Roberts, because I don't think there's any doubt he'll be confirmed, is how everybody dances around the question Ken Starr was dancing with you around at the end, which is how you ask the Roe v. Wade question without actually asking it. The Democrats will all want to know, Will this guy overrule Roe v. Wade, but you can't ask that because he won't answer that. So you have to figure out a way to ask the question without really asking it, and that's what's going to happen all day tomorrow.

VAN SUSTEREN: Well, if that's the question you want to get across, how do you ask that? Because no one who was sitting in front of — you could ask someone — I mean, everyone knows you don't tell how you're going to rule on future cases when you don't have the facts and...

ESTRICH: Right. Right.

VAN SUSTEREN: What's a way to accurately ask that question, if you believe that that's, you know, a legitimate question to ask? How do you ask it?

ESTRICH: Well, for instance, Arlen Specter said he's going to ask him, Do you believe in a right to privacy? Do he'll ask, Do you believe in a right to privacy, and John Roberts will say, Yes, I do believe in a right to privacy. Then they'll say, Well, do you believe in respecting precedent? And he'll say, Yes, I believe in respecting precedent. So then you have to say, Well, do you believe that the right to privacy is broad enough — and now here we go — to encompass a woman's right to reproductive freedom? Well, he'll say, certainly in some circumstances, he believes that because he believes in birth control and things like that.

So then you have to keep pushing it. And you say, Well, do you believe that it's broad enough to encompass a woman's right to reproductive freedom, broad enough to include a right to terminate a pregnancy? Well, at some point along this lines, because I'm a law professor and he's a smart guy, he'll draw the line and he'll say, Beyond this, I can't go, because now you're in the area of, you know, asking me to decide a specific case.

And somewhere along the line between recognizing a right to privacy and where he would draw the line of how broad the right to privacy is, he'll stop answering the questions. And my friends on the left will have to decide whether they're going to go along and vote for him because he's going to come across as a very attractive moderate, or to look like they're imposing a litmus test on abortion and oppose him. And that's going to be the tough one.

VAN SUSTEREN: We only have 45 seconds. And I asked Ken Starr this question — Roberts gets one vote as chief justice. Does it make a difference whether he's the chief or the associate? Ken says yes because...

ESTRICH: Oh, absolutely. Absolutely, because he gets to lead the Court for the next however many years. That means he gets to assign opinions, lead the conversation. My great hope, and I hate to say this to our conservative viewers, is that if he wants to do what Ken suggests, to make those 6-3, 7-2 courts, that the only place he's going to find seven votes on this Court is in the middle. And I think my conservative friends are smart enough to know that, too, and that's why they're worried.

VAN SUSTEREN: All right, Susan. Thank you very much.

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