Judging Roberts

This is a partial transcript of "Special Report With Brit Hume," July 21, 2005, that has been edited for clarity.

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SEN. EDWARD KENNEDY (D), MASSACHUSETTS: What little we know about his views and values lends even greater importance and urgency to his responsibility to provide the Senate and the American people with clearer answers.

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BRIT HUME, HOST: But it isn’t just liberals who think they don’t know enough about John Roberts. Some conservatives are asking if he is really one of them or if he is instead a very bright lawyer whose constitutional philosophy has yet to be shaped and could go either way once he gets on the Supreme Court.

For answers to that question, we turn to a Washington lawyer who knows him very well, Shannen Coffin.

Mr. Coffin, welcome.

SHANNEN COFFIN, STEPTOE AND JOHNSON LLP: Thank you, Brit.

HUME: How do you know Judge Roberts?

COFFIN: We’ve been Washington lawyers together for some time. And I’ve worked with him in cases and against him in cases. I’ve been at — I was at DOJ and handled cases that he heard as a judge.

HUME: And how did you find — and you believe him to be clearly a judicial conservative?

COFFIN: A judicial conservative, yes, I think so. His approach to the law is to start with the text of the Constitution and the statutes so that he looks to Congress to decide the policy of the nation, not to his own personal policy preferences.

HUME: Well, of course, no judge would confess to saying, "Well, you know, I realize there’s a Constitution there, but I kind of like my own preferences." All judges profess to do that.

COFFIN: That’s right. That’s what they profess, but it’s often not what they do.

HUME: So can you give me some concrete examples of views you’ve heard him express or cases on which he’s ruled in which he exemplifies this fidelity to the Constitution, as written?

COFFIN: Sure. There’s the case that Professor Tribe talked about with you Thursday, the infamous French fry case, where Judge Roberts started discussing the case of a 12-year-old, I believe, who was arrested in the Metro on a no-tolerance policy for eating food on the train.

HUME: On the train. And there’s a picture of her on the screen now.

COFFIN: That’s right.

HUME: She got hauled away and was detained for several hours.

COFFIN: Right. And Judge Roberts said: Boy, this is a really dumb thing to do. And if I were in that situation, I’m sure I wouldn’t have done the same thing. But that’s not my job. My job is to say what the Constitution of the United States requires. And her arrest was constitutional under the Fourth Amendment.

HUME: Which provision of the Fourth Amendment is...?

COFFIN: The provision of the Fourth Amendment that allows arrests for probable cause. She was seen committing a crime, a silly crime, of eating a French fry on the train.

But because of that, the police had probable cause to arrest her. And all Judge Roberts did was apply the law that was before him, apply the 14th Amendment and apply Supreme Court precedent, and come out with a conclusion that he, as a policy matter, made pretty clear he thought was bad. But as a matter of law, it was clear that that’s what he thought the law provided.

HUME: We didn’t have a chance to talk about it yesterday when Professor Laurence Tribe of Harvard was here. He spent quite a bit time on that very same case with a different view of it than you and, obviously, Judge Roberts held.

He talked also about the case of a man who was in captivity and was subject to a military commission tribunal.

COFFIN: The Hamdan case.

HUME: The Hamdan case. Does that case also reflect a constitutional text devotion?

COFFIN: Oh, absolutely.

HUME: How so?

COFFIN: It reflects a view that the president and Congress deal with foreign affairs in this government and that it’s not the role of the court to interfere with the president’s determinations on national security.

After 9/11, the Congress authorized use of force in this War on Terrorism. And the panel in that case, three judges, found that that authorization was good enough to allow these military commissions for, in this case, Usama bin Laden's personal driver and bodyguard.

HUME: Now, these are pretty good examples of what conservatives would consider judicial restraint, refusing to get between what they see the law as written and an action by a president or by a local transit authority.

Question: How can you know, or why do you feel, that, once on the court, he will not undergo the same kind of change in his outlook that has affected other supposed judicial conservatives who have gotten on the court?

Washington is a city, you know, where people do change. And they get more popular in the media when they do that. What do you think?

COFFIN: I think, if you looked at John Roberts’ personal life, you’ll see he’s very grounded. He is a family man. He loves his kids, you know, more than life itself.

And he’s not going to be spending time on the Georgetown cocktail circuit and in Geneva having foreign governments tell him how he should decide U.S. law. If you look to the man and to his legal writings as a judge, you see a principled jurist.

And, you know, the justices that take a different approach have been co-opted. And Roberts is a brilliant man who’s going to be a leader, not a follower.

HUME: Have you heard him express admiration for different particular judges and legal scholars?

COFFIN: Well, I’ve heard him express great admiration for the judges that he worked for, and especially for Chief Justice Rehnquist. I think Chief Justice Rehnquist had a profound effect on a young John Roberts as a lawyer.

And I think there’s a mutual admiration there. And, you know, Justice Rehnquist was obviously a conservative, principled jurist.

HUME: Have you ever heard himself express himself on the subject of Justice Scalia?

COFFIN: No, I haven’t heard him express himself on their jurisprudence. I know he admires them as justices. But, you know, we haven’t had a conversation where he said, "I think Justice Scalia or Thomas, you know, is terrific for x, y, or z reason."

HUME: He’s going to be asked his views about abortion. His wife is active in the anti-abortion movement.

COFFIN: The pro-life movement, as I like to call it.

HUME: The pro-life movement, OK. What about that?

COFFIN: I don’t think that Jane Sullivan Roberts' views on abortion should be fair game at all here. John Roberts is going to approach the issue of abortion as he approaches other legal questions, by asking what the Constitution says. But you can’t impute her views to him.

HUME: Her views to him. Gotcha.

Mr. Coffin, thank you very much.

COFFIN: Thank you, Brit. Appreciate it.

HUME: Good to have you.

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