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The Roberts Hearings Continue; Hurricane Ophelia Lashes North Carolina

Aired September 15, 2005 - 08:55   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer, and you're in THE SITUATION ROOM where news and information arrive in one place simultaneously.
Happening now, our special coverage of the John Roberts confirmation hearings and updates from your hurricane headquarters. It's just before 9:00 a.m. Eastern here in Washington, and the president's choice for chief justice is ready for a final go round with senators. Democrats will take yet another shot at breaking what one member is calling Roberts' -- quote -- "cone of silence."

Also this hour, Hurricane Ophelia still hovering over the Carolina coast and hammering it with drenching rains and strong winds. We'll keep you up to the minute on the storm's slow trek.

And President Bush is preparing to return to the Gulf Coast yet again to deliver a prime time speech to the nation about hurricane recovery. What can he say to help Katrina's victims move forward and to help his own battered image?

You're in THE SITUATION ROOM.

Welcome to our special coverage.

On this third day of questioning by the Senate Judiciary Committee, John Roberts still seems to be on track to be confirmed as the 17th chief justice of the United States. His performance so far has been polite, adept and, at least according to his critics, not all that revealing.

Some Republicans say though, if Democrats can't support Roberts, they're probably incapable of accepting any GOP nominee.

Our national correspondent Bob Franken is standing by.

Bob, fill us in, what we can expect today as we watch John Roberts prepare to get ready to sit down at that table with the red tablecloth and start answering questions yet again?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Yes, we're in THE SITUATION ROOM. He's in the hearing room.

There's been so many words and so little communication. Roberts has been able to finesse, as you point out, just about every effort from the Democrats to penetrate this facade and try and get him to establish statements on various legal issues. They haven't given up. About a half dozen of them are getting a third round of questioning, starting with the ranking Democrat on the committee, Patrick Leahy. They're going to be going through much of the morning making their last efforts to try and come up with something that will, perhaps, raise some questions about John Roberts.

As you noted, the Republicans are just about dancing with glee about the success that Roberts has had in this fencing match. He's the one who's been landing, using the Democrats as foils.

In any case, at the conclusion of that, they will go into executive session. They'll be going behind closed doors. There's nothing remarkable about that. That is going to be so senators can ask questions about the FBI report on Roberts, where personal matters come up. It's traditional.

And that is going to then be followed by the various interest groups. The people who like him will be saying why they like him. Other organizations who don't like him will be telling the committee why. Don't expect any surprises there.

Hopefully, at some point this evening, hopefully, as far as the chairman is concerned, the hearings will end this evening. The plan now is a week from now for the full committee to vote on Roberts. The plan then after that is the following week, possibly that Tuesday, the 26th, the full Senate will vote on confirmation. And it is widely expected now that Roberts will be confirmed just a week or so before the Supreme Court reconvenes. And if things go as they're expect to now with the new Chief Justice John Roberts -- Wolf

BLITZER: Thanks very much. Bob Franken reporting for us.

Our viewers will notice that 20-minute clock. It will clock -- it will time down from 20 minutes. These four Democratic senators will each have 20 minutes for a final round of questioning. They asked the chairman, Arlen Specter, for yet more time. They will get more time, beginning with the ranking Democrat on the committee, Senator Patrick Leahy of Vermont.

This is it, I suppose, baring some extraordinary development, this is it for questioning for John Roberts -- Jeff Greenfield?

JEFF GREENFIELD, CNN SENIOR ANALYST: It is. And anybody expecting the kind of fireworks that happened with Clarence Thomas is in for a disappointment.

I think the most important meeting may be, or one of them, beyond our view at 4:00 this afternoon when Senate Democratic leader Harry Reid is going to meet with some liberal interest groups to figure out -- basically to talk about what strategy do we essentially acquiesce and not stage an all-out fight scene, see if we can be reasonable. Or do we try to rack up as many no votes as possible and say to President Bush this is as far as we're going to the right. It's a very big question to be debated.

BLITZER: And we see Sen. John Cornyn of Texas sitting in the chair. Perhaps Arlen Specter is not going to be convening this final round of questioning. Former Sen. Fred Thompson, who's also a TV and movie star, has been advising John Roberts throughout this process. Sitting down behind us. He's going to be joining us, by the way, later.

Jeff Toobin is here as well. What are you looking for?

There he is, Arlen Specter, he will be introducing John Roberts.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: I mean, I think the Democrats are in a real pickle here, because if they want to oppose him, what grounds do they pick? Do they say, well, he just hasn't been responsive enough? There he's been sort of about as responsive as most recent nominees. Or do they say, based on what he said, he's unacceptable? But what has he said that is so unacceptable? Neither one of those options are especially palatable. So even if you want to oppose him, articulating a reason is not going to be particularly easy.

BLITZER: Yes. And Fred Thompson there. Arlen Specter getting ready to convene this session. He's been operating under pretty regular procedures. And he has not hesitated at all to interrupt senators and say what's the question.

Let's listen in.

(JOINED IN PROGRESS)

SEN. ARLEN SPECTER (R), PENNSYLVANIA: We will now proceed to the third round of questioning, which will be abbreviated. There are six senators on the other side of the aisle who have requested additional time. There will not be a third round for any of the senators on the other side of the aisle.

We will go into a closed session a little before 11 and we will turn to the outside witnesses hopefully at 11:30. And we project a conclusion late this afternoon, but that will depend on a sequence of events.

I now yield to my distinguished colleague, Senator Leahy, for 20 minutes.

SEN. PATRICK LEAHY (D), VERMONT: Thank you, Mr. Chairman.

Judge, you're really going to miss us, aren't you? You're going to miss doing this every day. I mean, it's -- you're not even going to answer that one, are you?

(LAUGHTER)

JUDGE JOHN ROBERTS, NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES: Well, it's a once in a lifetime experience, Senator.

LEAHY: When we left off the other day, you and I were discussing the Supreme Court's decision and Christine Franklin -- the Title IX case. This, for those who may have forgotten, was the case of very, very serious sexual abuse of a young girl by her teacher. It makes your skin crawl just to hear the facts of it.

Now, Justice White's opinion for the Supreme Court rejected your technical legal arguments. You had argued she should not be allowed to sue for damages.

He wrote, quote, "From the earliest years of the republic, the court has recognized the power of the judiciary to award appropriate remedies to redress injuries actionable in federal court." He went on to note that, "To disallow damages, remedy in this case would be to abdicate our historic judicial authority, to award appropriate relief in cases brought in our court system."

And then most tellingly, Justice White wrote that your argument that Christine Franklin's remedy should be limited to backpay and injunction, a position you had reiterated a couple days ago -- he said that that conflicts with sound logic. He went on to say that it's clearly inadequate. And he wrote that backpay does nothing for in prospective relief in the court where there's no remedies at all.

Now, the reason I raise this case, not that it's one of those rare ones where you are on the losing side, but I raised it because I thought it was a case about what our courts should do, including doing justice and remedying rights and protecting Americans.

So my question to you is this: Do you now recognize that the Supreme Court's view in the case set forth in Justice White's opinion was the right one, and the positions of the United States in your brief were the wrong ones?

ROBERTS: Well, as a judge, looking at it, obviously when you lose a case, as you point out, 9-0 it's a pretty clear signal that the legal position you're advocating was the wrong one.

The position the administration took in that case was the same position that the Court of Appeals had taken. In other words, what the Supreme Court did was reverse the lower court.

So I'm just explaining why the position we took prior to the decision may have looked different than it did after the...

LEAHY: I understand that. I thought I, sort of, laid that out earlier.

But my question is: Do you now accept that Justice White's position was right and the government's position was wrong?

ROBERTS: I certainly accept the decision of the court -- the 9-0 decision, as you say -- as a binding precedent of the court.

Again, I have no cause or agenda to revisit it or any quarrel with it.

The issue, of course, is the one of: What remedies are available for an implied cause of action? The reason I think that the lower courts came out the one way and the Supreme Court came out one other way is that you're dealing with an implied cause of action. In other words, it hasn't been spelled out.

LEAHY: I think the Supreme Court was looking -- acting, as they felt, within the law, for an area that would actually bring justice.

That was basically my point. It may have been implied, but they looked within the case. They looked within the law. And they found an area to bring justice.

And I realize hard cases sometimes make not the best law, but I think this case is a hard case but it made good law.

Would you agree?

ROBERTS: I have no quarrel with the court's decision, Senator.

LEAHY: You have been involved a great deal in the development of the Supreme Court authority limiting the ability of individual Americans to ensure they actually receive the rights and protections that Congress has mandated under spending clauses.

In the Reagan administration, you advocated legislative responses to Maine v. Thiboutot. That's how the Supreme Court tell us it's pronounced. It's not how those of us who live -- the way those of French Canadian descent might say it.

That was a case that recognized broad access to courts to vindicate your rights under federal law. You criticize the damage supposedly caused by that case in a 1982 memo.

And then you wrote briefs and argued before the Supreme Court in the '80s and '90s. We've talked about some of these, South Dakota v. Dole, Wilder v. Virginia Hospital, Sutter v. Artisam, Gonzaga University v. Doe, and you call for the narrowing of Congress spending powers, eliminating the right of individuals to sue to compel the protections Congress required under federal law.

I worry about this if an individual loses their right to sue, if the state or the administration or whoever the administration might be doesn't protect their rights. For example, if the only remedy for a state's refusal to live up to its obligations under a spending power enactment, like Medicaid or another such program, is action by the federal government and the federal government doesn't act, where does that leave the rule of law? Where does that leave America's sense of justice if an individual can't -- doesn't step in and seek action?

ROBERTS: Well, two points, Senator.

The issue in the spending clause cases that you referred to -- Wilder, the later one, Sutter case, and the Gonzaga case that I argued when I was in private practice -- the issue is one of congressional intent.

The question is: Did Congress intend there to be a private right of action? That's what the courts are trying to figure out.

And if Congress did intend there to be private right of action, if Congress intended this to be actionable, whether through Section 1983 or under the law itself, then there would be a private right of action.

In some cases, Congress doesn't intend that. And in those cases there wouldn't be.

I would say that...

LEAHY: Go ahead.

ROBERTS: I was just going to make the point that in those cases, of course, I was advocating the position for a client.

I did have occasion as a judge to address a spending clause case. It was a case called Barbour v. Washington Metropolitan Area....

LEAHY: But that one the statute was pretty darn clear.

ROBERTS: Well, it was a 2-1 decision; divided decision on a court that doesn't often issue 2-1 decisions. There was a lengthy dissent saying that Congress did not have the authority to require...

LEAHY: Judge Sentelle dissented?

ROBERTS: Judge Sentelle dissented.

LEAHY: I read that. I don't want to go into that; he's not here before us.

But what I worry about, though, is the trend of these (inaudible) that may say that Congress intended these programs, more like Medicaid, a commitment there to be, kind of, an exclusive bargain between the federal government and the state government.

And that raises a question in my mind. I mean, do the courts really think we've made empty promises?

I thought of this the other night. Because I remember what you said about the empty promises of the Soviet constitution.

But wouldn't it be an indication we were making the same kind of empty promises if individuals can't sue if they're left as innocent bystanders who are harmed, but they have no remedy, if the state is negligent in acting or if the federal government doesn't protect it?

I mean, why shouldn't they be able to sue to get the promises that are made in these bills so it's not like the Soviet constitution: great promises, but empty?

ROBERTS: Well, the issue is not whether they should be able to sue or not. The issue is whether Congress intended them to be able to sue or not.

The issue doesn't even come up if Congress would simply spell out in the legislation, "We intend these individuals to have the right to sue in federal court." That would prevent the issue from even coming up.

All of those cases we've been talking about arose because Congress did not address the question and, therefore, the courts...

LEAHY: Congress assumes the states and the federal government are going to do what the law spells out. We don't do it as an empty promise; we assume they're going to do it.

When they don't do it, if you're developmentally disabled, Medicaid kids, foster kids, rape victims and so on, shouldn't they be able to have a voice?

ROBERTS: Well, if Congress wants them to sue, all Congress has to do is write one sentence saying "individuals harmed by a violation of this statute may bring a right of action in federal court." There are laws where Congress says that and that question never comes up.

The issue in the various cases that we've been talking about, including in the Barbour case, where I ruled that the individual did have the right to sue -- when I was a judge -- the issue is what did Congress intend? And all too often that issue is not even addressed.

I don't know whether it's because of inadvertence or it's because of inability of Congress to agree and both sides, sort of, say, "Well, let's let the courts figure it out."

LEAHY: May be the assumption of those of us who take an oath of office...

BLITZER: While this hearing continues, we're going to get a little analysis. Jeff Toobin and Jeff Greenfield are here with us here in THE SITUATION ROOM.

Six Democratic senators asked for a third round of questioning, whether 15 minutes some will get, 20 minutes others will get, beginning with Senator Leahy.

You reported just a little while ago, Jeff, that at 4:00 Eastern today the Democratic leadership in the Senate, Harry Reid and company, will convene to see what strategy they should take in the aftermath of these hearings. The decision they make could be very politically significant for them.

GREENFIELD: My understanding is they're going to gather some of the liberal interest groups who are not happy with Judge Roberts and try to figure out whether to say, all right, some of our Democratic members will vote against him, but we're not going to wage any kind of all-out go-to-the-mattresses filibuster so that we can say we are reasonable people. We're not, you know, we're not standing in the way of everything so that if the next nominee is very, very conservative they'll stage a fight. Or whether they should run up as big a no vote as possible. And they're going to have that argument.

There are people, some of these interest groups who have already come out against Judge Roberts and who really want the Democratic senators to take a stand and saying no. And others are saying, wait a minute, are we then going to oppose anybody that Bush nominates just because he isn't our kind of justice? So, and it is filled with political implications. Do you come out as obstructionists or do you alienate the most ardent members of your base by not staging a fight?

BLITZER: Jeff Toobin, I can't tell you how many Republicans have pointed out to me that they voted for Ruth Bader Ginsburg to be a Supreme Court associate justice nominated by then President Bill Clinton, even though she had been active in the ACLU, even though she supported abortion rights and all of her views on opposing the death penalty and all sorts of other issues were very well known. They then went ahead and more than, what, 90 votes were gathered in favor of Ruth Bader Ginsburg. They say, look, if we gave then President Bill Clinton the prerogative to select whom he wants on the Supreme Court, why can't the Democrats show the same kind of behavior right now?

TOOBIN: Fair point. It's just a fair point. You know we didn't agree with her on a lot of these very specific, very important issues, but this is part of the president's prerogative.

An additional complication, I think, that the Democrats face in trying to strategize here is the existence of the O'Connor seat immediately thereafter. And what if, for example, you say, OK, well, we'll give Roberts a pass, which I mean seems likely to happen in one way or another. I mean he's not going to lose. It's just a question of how many votes go against him.

What if the next nominee from a very conservative background repeats Roberts' testimony practically word for word? What if you know he or she defines privacy in the same way, talks about precedent in the same way? How do the Democrats then oppose him or her if they want to? What if they use this as a template for a successful confirmation hearing? Do the Democrats, are they now bound to vote for that candidate as well? It's a hard question.

BLITZER: And, in effect, Roberts is setting his own precedent right now, his own model that presumably will be followed in the coming weeks.

GREENFIELD: Now one thing that can distinguish is if this next justice, or prospective justice, has a paper trail of what looked like very hard core conservative issues, they can say, wait a second, that's the difference.

BLITZER: All right, we're going to continue to watch this hearing unfold. Senator Leahy questioning John Roberts.

We're going to take a quick break. Lots more of our coverage coming up. An update on Hurricane Ophelia coming up, as well. We'll be right back.

(COMMERCIAL BREAK)

BLITZER: Watching lots of stories here in THE SITUATION ROOM, including the John Roberts confirmation hearings. Round three continuing right now. We'll go back there shortly. But there's other stories we're watching, including Hurricane Ophelia. Forecasters now say the eye of the storm may never make landfall directly in North Carolina. But the Category 1 storm is still giving coastal communities a pounding.

The storm's eyewall is hitting the area for a second day. High winds, heavy rain and dune-busting surf have been reported. But local officials say there are no signs of severe flooding. More than 120,000 homes and businesses already without power.

The slow-moving storm is expected to linger for hours over North Carolina's Outer Banks. Supplies have been pre-positioned for after the storm passes. Medical and search and rescue teams are also ready to go into the area.

Let's check in with CNN's Chad Myers at the CNN Weather Center for an update on what's going on -- Chad.

CHAD MYERS, CNN METEOROLOGIST: Wolf, isn't it ironic that the eye, the center of the eye never made landfall, yet we had a wind gust on shore of 92 miles per hour? The center of the eye has to crossover some land for there to be a specific landfall called. That never happened. It missed Cape Fear. It just missed Cape Lookout by about three miles. But the eyewall has been on shore. The eye itself, but not the center, has been on shore now for like 20 hours.

Look at this map. Everywhere you see red, from Ocracoke Island, right through Morehead City, down to Wilmington, almost to Myrtle Beach, that's all 10 inches of rain or more. Everywhere you see pink that's 15 or more. Cape Lookout, 92-mile-per-hour gusts. And the eye never came on shore. Wrightsville beach, 79. Wilmington, 68. Even Surf City and Topsail Beach about 70 miles per hour.

So the next question, where does it go from here? Well it still looks like it's going to miss the bottom of Cape Hatteras and then turn possibly to the left. Well, what's left of there? New England. This thing could actually make a second or at least approach a second landfall anywhere from the eastern tip of Long Island all of the way over to Cape Cod.

Now, the official forecast, with that said, has it missing, but certainly there will be battering waves here in New England all the way down into Maine.

Show you the spaghetti map every once in a while, 14 different computer models so that you know what we're looking at. Five of them are on shore. Five of them do hit either Massachusetts, Rhode Island, Block Island or even Long Island, but 10 of them keep it offshore.

One way or the other, there is going to be a battering wave situation here from, really, New York, right on through New Jersey, all the way up to Maine. And then if it does make landfall here in Nova Scotia, Atlantic Provinces of Canada, there will certainly be some damage there. Now it's not going to be a hurricane then, it will just be the remnants of the hurricane then. But I'll tell you what, certainly there will be the potential for some strong weather there. Wolf, back to you.

BLITZER: Chad, thanks very much. Chad Myers with the latest on Hurricane Ophelia, we'll be checking back with him.

Let's go back to the Senate Judiciary Committee, the Senate Hart Office Building, John Roberts, the Supreme Court nominee, answering questions from Sen. Patrick Leahy. He's going to be wrapping up soon. And then he will be followed by Sen. Kennedy.

(JOINED IN PROGRESS)

ROBERTS: Senator, you said you think this is something most Americans aren't aware of. I suggest probably most judges aren't aware of...

LEAHY: Well, that's probably so.

ROBERTS: It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up.

LEAHY: Certainly different than what we think in our system of...

ROBERTS: That was exactly my reaction.

On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.

I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.

That I think is very important.

Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.

LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.

ROBERTS: Certainly, Senator.

LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Leahy.

Senator Kennedy, for 20 minutes?

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Thank you very much, Mr. Chairman.

Good morning, Judge Roberts.

ROBERTS: Good morning, Senator.

KENNEDY: In response to a question that was asked by Senator Biden the other day, you appropriately pointed out that there were different responsibilities at the local level, state level and national level in dealing with the challenges our country faces in domestic policy.

I want to talk about what you understand are the powers that we have at the national level. And I want to start off on the issue of racial discrimination, discrimination on the basis of race in our society.

We've talked about this in different ways over the past few days. And our founding fathers did not get it right in the Constitution. We've had the Civil War, the struggles of Dr. King.

Do you believe that we have the authority and the power to pass legislation to free ourselves from the stains of racial discrimination?

ROBERTS: Yes.

KENNEDY: Now let me ask you about gender discrimination.

KENNEDY: You find out over the history of this country, as you're very familiar, how women have been discriminated against in all forms, in all shapes.

And now I want to ask you whether you believe that we have the power and the authority to pass legislation to free our nation from discrimination against women in our society.

ROBERTS: Yes, Senator, I do.

I'm familiar with the various legislative enactments in the area that protect right to work and so forth, free from discrimination and...

KENNEDY: Now, let me ask you about those that are faced with disabilities.

Do you think the 50 million Americans that are faced with disabilities in one form or another -- challenges, I like to say -- do you think that we have the authority and the power to free this country, free our nation from the forms of discrimination against those who have a disability?

ROBERTS: I do, Senator.

Now, there are issues that come up, as you know, in several of the cases before the Supreme Court on the particular applications of that, cases concerning the question of do you have the authority under Section 5 or the Fourteenth Amendment to abrogate state sovereign immunity if the claim of disability discrimination concerns a state as a defendant.

And as you know, in the Garrett case, there was conclusion that the authority was not there. Later, in the Lane case, under Title II of the Americans with Disabilities Act, the conclusion was that sufficient record had been established that there was the authority.

So while, as a general matter, there is the authority, in a particular case it may come up against other provisions in the Constitution, in that case the recognition of state sovereign immunity, and that presents an issue that the courts have to address.

KENNEDY: You mentioned the Lane case. That was decided 5-4. We're going to hear later today from Beverly Jones, who was a plaintiff in that case.

I've listened to her, I've met with her before. An extraordinary woman, mother of two, trying to provide for her family, court reporter. And it was either an issue or question whether she was going to crawl up the flight of stairs to have access to the courtroom and have someone bring up her wheelchair or whether she was effectively going to be denied that opportunity to have access to a courtroom in Tennessee.

KENNEDY: Four justices indicated in their dissent that this kind of issue or question ought to be resolved by states effectively. Fifty states ought to be making that judgment.

I strongly believe that this country, in its march toward progress, in dealing with the disability -- with Americans with Disabilities Act, the Rehabilitation Act, the work that was done with IDEA over the long period of time -- that we have come to the point where we as a country want to invite all of those with forms of disability to be a part of the mainstream.

But that was a 5-4 decision. And I appreciate the fact that I gather from your, at least answer, I guess, in the Lane v. Tennessee that you're at least sympathetic to the judgment that Justice O'Connor made in indicating that accommodation for those with disabilities in that case was appropriate.

ROBERTS: Well, it's certainly the precedent of the court in that area and I have no quarrel with it.

The issue, of course, is whether or not Congress has the authority under Section 5 of the 14th Amendment to abrogate the states' sovereign immunity. It's not a policy judgment by the court about leaving things to the states or federal government but a legal determination of whether the state's sovereign immunity's been abrogated.

And the court determined in that case that Congress did have that authority and that it could authorize the suit against the state institution.

KENNEDY: Well, we're going to come back to, sort of, the, kind of, legalist determinations that make and extraordinary difference in terms of people's lives. We welcome guidance and invitation about which particular provisions of the Constitution that we ought to utilize in order to strike down these forms of discrimination.

KENNEDY: Let me ask you a broader question: Do you think having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength of our society?

ROBERTS: I do. I agree with that statement, Senator. Yes.

KENNEDY: I do too.

And I want to just review very quickly what I consider to be a sort of a pattern in different judgments that you have made over a period of 20 years. We haven't got a lot of time, and I'm not going to bother going through the memorandas, unless you would like to.

But for someone who is black or brown or a woman or disabled and looked at a pattern over 20 years where you were actively involved in the Reagan administration against affirmative action -- I'm leaving out the whole issue of quotas. All of us oppose quotas. We are talking about affirmative action and you expressed strong reservations about affirmative action.

In 1991 in the FCC case, you as the advocate for the U.S., the acting solicitor general, refused to take the position of the FCC, your own client. And the FCC filed briefs in favor of its own affirmative action program and your office opposed the FCC.

This is, as I understand, extremely unusual.

Part of the difficulty that we have, Judge Roberts, is we don't have your records on affirmative action. They were in the Reagan Library. And at some time they became misplaced. And we don't have those records, to be able to give a complete review of these documents, although what I'm stating here is factual.

And we don't have the information that we requested from the Solicitor General's Office, who, as you appropriately mentioned yesterday, was America's lawyers in this particular case, in this solicitor case, where the FCC with its affirmative action program that recognized that with all of the broadcasting and the television station that there were no minority-owned stations.

And they had a modest program. They petitioned you, who regularly was going to intervene on behalf of the FCC, and then you made a judgment that you would not -- that you'd enter a brief in opposition to it.

The Supreme Court came out in favor of the FCC.

KENNEDY: I know that the standard altered and changed subsequently on that case.

And then in 2001, you took a private case to basically see that the Department of Transportation's affirmative action program, that applied, in this case, to the highways, which has been overwhelmingly supported by the Congress year in and year out, would be effectively undermined.

The point I'm asking here is, given these series of actions over a period of time, what do you think in your record would give some sense of hope to women, to minorities, blacks and browns, to those that are disabled, that are not looking for a handout, but just looking for a chance in this diverse society to be able to have an equal opportunity?

ROBERTS: Well, Senator, I think there's a great deal in my background that you could look to in that respect.

For example, you could look to the cases in which I argued in favor of affirmative action. I've argued on both sides of that issue.

In the Rice v. Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for native Hawaiians.

ROBERTS: I lost that case but I was arguing on the side of affirmative action.

There are other episodes in my background that people could look to. For example, I regularly participate in -- when I was at my law firm -- a program sponsored by the firm, a legal reasoning program for minority and disadvantaged students going on to law school, to help them prepare for the rigors of law school, so not simply that they would be chosen, selected and admitted into law school but be in a better position to be able to succeed once they got there.

With respect to the FCC case that you mentioned in the Metro Broadcasting case, I think a fuller understanding of the situation there is necessary.

The United States had already taken a position before the FCC opposed to the FCC program. And that put the Solicitor General's Office in the position where they had the position of the United States, which was opposed to it, and the FCC position which had prevailed before the District of Columbia Court of Appeals.

I authorized the FCC to defend its position in court. That was a discretionary decision; I didn't have to do that. But I thought the Supreme Court in a situation where the FCC, part of the United States, and the formal position of the United States before I had ever gotten involved in the case were at loggerheads, that the court should have both views and decide the case. They did decide it in favor of the FCC, 5-4. And as you noted in the other case that I participated in, later the Supreme Court overturned that decision.

The long and short of it is as you look at my record on the question of affirmative action, yes, I was in an administration that was opposed to quotas. Opposition to quotas is not the same thing as opposition to affirmative action. That was something that President Reagan emphasized repeatedly.

I argued against quotas in the FCC case.

ROBERTS: I argued in favor of affirmative action in the Hawaiian case.

In terms of my own personal involvement, I've been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society.

BLITZER: All right, this hearing is continuing, Senator Kennedy questioning John Roberts.

Jeff Toobin, when he says he's argued both sides of the affirmative action case, doesn't that pull the rug out from Senator Kennedy's questioning?

TOOBIN: I was sitting there listening to that answer thinking, boy, this guy is good. I mean, he is very good at answering these questions in a non-threatening, comprehensive, intellectually impressive way.

And what I thought Kennedy was doing with this question was less soliciting an answer than trying to build a rationale against him. He was trying to say, this is a pattern that you have shown of hostility to minority interests and the pattern is A, B and C. And Roberts, very calmly, very impressively, said, well, what about D, E and F, which point in the other direction, and you know, I mean, it's just going to be difficult.

BLITZER: The bottom line, he's good at answering these questions, Jeff Greenfield?

GREENFIELD: I don't think you get paid $700 an hour, or whatever he got paid...

BLITZER: At his law firm.

GREENFIELD: Yes, to go in and argue in the most elite courtroom in the United States if you're not really good. As Jeffrey knows better than I, those 30-minute oral arguments when any one of those nine justices can interrupt you at any point and take you on a completely different tangent, means you have to know every sentence of your argument and be able to maneuver it like a Rubik's Cube. He is very good.

The question that the Democrats are trying to leave somebody with is, when you get past this performance, is this somebody who is in the mainstream of what we think the law ought to be, and I think so far, unlike a situation like a Robert Bork, who had to defend a lifetime worth of intellectually provocative arguments, Roberts doesn't give them that kind of target to shoot at.

BLITZER: Because he was a hired gun, whether by his law firm or when he worked for the Reagan administration or the first Bush administration.

Hold those thoughts. We're going to continue our coverage. We're going to who back to the hearing. We're also watching Hurricane Ophelia on the North Carolina coast. We're going to have a live report. We're going to go there right after this.

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BLITZER: We'll back to the John Roberts' confirmation hearings momentarily, but we're also following another important story, the course of Hurricane Ophelia. The Outer Banks of North Carolina could feel Ophelia's rage literally for hours today.

CNN's Susan Candiotti has this situation. She's joining us now live from Nagshead, North Carolina. That's on the Outer Banks. What's the latest, Susan?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Wolf, we're in the middle of a fairly powerful rain band at the moment, but as you know, they come and go.

Joining us now is the emergency operations director, Sandy Sanderson, from here in Dare County, which covers not only the upper Outer Banks, but Hatteras Island, where there is a mandatory evacuation order under effect. What sense do you have that people got out?

SANDY SANDERSON, DARE COUNTY EMERGENCY MGMT: Susan, I think we had an excellent response from our population. They seem to recognize the fact that Ophelia was going to be a major factor in their life for the next of couple days, and they made a good decision to leave.

CANDIOTTI: We have a sense that maybe most of the tourists got out, but a lot of the residents stayed behind.

SANDERSON: I think that's not true. We -- talking to our people on the ground down there and their sense is probably a good portion of the year-round population also evacuated.

CANDIOTTI: What information do you have, the latest information, of what kind of battering they're taking right now on Hatteras, Buxton, that area?

SANDERSON: Well, the report that I got this morning about 8:00 from the people on the EOC, from the EOC in that area, indicated they had winds in the 60, 65 mile-an-hour range with strong rain bands coming ashore. But still below Category 1 strength.

CANDIOTTI: What kind of flooding do you expect down there in particular since the eyewall brushed the closest to them?

SANDERSON: Ocean side flooding, I'm not really that concerned about. We do have erosion, certainly. In any kind of event like this you would. Where we're concerned is the back side of the storm as it goes past Hatteras Island, then will get the sound side flooding as it passes.

CANDIOTTI: To what degree do you think that Katrina -- we're always asking this question -- might have at least had an emotional impact on people as they make preparations for Ophelia?

SANDERSON: Well, certainly the media coverage that Katrina has received is going to stay in everybody's mind when another hurricane presents itself. In Dare County, we are always prepared to deal with hurricanes. So we're getting good support from the state, we're getting good support from FEMA, and we know that the response will be in kind.

CANDIOTTI: Mr. Sanderson, Wolf Blitzer has a question for you, which I will pass on. Wolf, go ahead

BLITZER: I wonder if everyone in the nursing homes, the hospitals, the elderly, people who don't necessarily have vehicles or can drive on their own, managed to get out if they were supposed to get out?

CANDIOTTI: Exactly. Well, I know down on Hatteras Island, you don't have any hospital or nursing homes down there, do you? On Hatteras Island, do you have hospitals and nursing homes? Of course, now we're very concerned about what whether those people have the means to get out, naturally in light of what happened with Hurricane Katrina, particularly in the New Orleans area. What arrangements and what requirements are there for them to get out?

SANDERSON: We have no clinics or hospitals in that area, no nursing homes at all. Our social services and health and fire departments keep an excellent record of all the special needs population. And we made every attempt to notify those people. In fact, we're almost within two-hour contact with everybody there that decided to remain. So we're very comfortable with the position they're in right now.

CANDIOTTI: And the same thing goes for this end of the Outer Banks as well?

SANDERSON: Absolutely.

CANDIOTTI: All right. There you go, Wolf. So that's pretty much the set-up here. They are hoping that this end of the Outer Banks gets only a glancing blow on the outskirts of the storm. We'll see how that goes as the evening goes on. The problem is how slowly the storm is going. Back to you -- Wolf.

BLITZER: All right, Susan, a quick question to you. So, basically what we're seeing now, the weather around you, is that what it's going to be like in the specific area where you are for the time being?

CANDIOTTI: For the time being, we're -- you know, this isn't so bad. Tropical storm force winds, maybe mid-afternoon. And they really don't think they're going to be feeling anything much stronger than that because Ophelia is staying offshore. So Hatteras seems to be getting the brunt of the flooding. Now, they're getting much more flooding and did get much more flooding in the Wilmington area, Camp Lejeune area.

And power outages of more than 100,000 people, although they say nose numbers are going to fluctuate because already they've got about 20,000 customers back online. So, of course, that could change as the day goes on. But they've got more than 1,000 people in place, pre- positioned between National Guard, FEMA, as well as state troopers here, to move in as needed -- Wolf.

BLITZER: All right, Susan Candiotti on the scene for us. Susan, we'll be checking back with you throughout the day here on CNN. Thank Mr. Sanderson for us, as well.

We're going to continue to monitor what's happening with Hurricane Ophelia, the aftermath of Hurricane Katrina. We're going to go back to the Senate, John Roberts confirmation hearings. Much more coming up here in "THE SITUATION ROOM" right after this short break.

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BLITZER: Welcome back. We're in "THE SITUATION ROOM." We're monitoring Hurricane Ophelia, off the coast of North Carolina. We'll go back there shortly. More developments in the aftermath of Hurricane Katrina.

But for now, let's go back to the Senate Judiciary Committee. Senator Dianne Feinstein of California is questioning John Roberts.

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ROBERTS: ... the Texas legislature, the representative of the people of Texas had reacher a certain determination about funding and how they wanted to fund particular activities, and that was what the litigation was about.

It's not a question of whether you believe in educating children or not. I don't think Justice O'Connor didn't believe that children should be educated, but she was in the dissent in that case.

SEN. DIANE FEINSTEIN (D), CALIFORNIA: I understand. Let me give you just two human dynamics.

One of the people in public life that I most respect is a mayor in my state of a small immigrant community called Orange Cove. His name is Victor Lopez. I have known him for about 10 years.

I've watched him -- and I'm a former mayor -- try to build a town from nothing. I was there -- there weren't sidewalks; there weren't schools. He has managed to do it. He has given his people a sense of pride -- they're all agricultural workers -- a sense of pride and dignity.

To me, that's the American dream. It's the federal job to keep illegal immigrants out, but once they're here, it's our job to see that they have certain basic rights, I think, among them education.

FEINSTEIN: Another interesting twist to this is in 1986, an amnesty was passed. Plyler was in '82. If the decision had gone the other way, you could have seen the enormous problem would have happened in '86 when all the children -- then legal, absolutely -- still would have been denied school.

So I think that's an interesting twist.

Now, Duke Law School Professor Catherine Fisk examined nine cases heard by you while you were on the Court of Appeals. Her review concluded that you ruled in favor of a corporation each time.

Consequently, she made this prediction, quote: "You're going to be a fairly reliable vote against workers' rights across the board," end quote.

Would you respond to that, please?

ROBERTS: I think the conclusion is wrong. I would suggest that any examination of nine cases is too small of a statistical sample to draw any conclusions of that sort.

I know that i have ruled against corporations on a regular basis on the D.C. Circuit. I think I just saw a study, a more comprehensive one, that suggested I tended to rule against corporations more than the average judge.

I don't want to --- I just skimmed the article, but it's quite often the case, for example, part of a lot of the business on the D.C. Circuit involves regulatory issues. Agencies regulating corporations: Are you ruling in favor of the corporation or the agency? And I know I regularly rule in favor of the agency. Sometimes I rule against the agency.

I'd like to think it depends upon the particular law and the particular facts.

But I haven't seen that study.

ROBERTS: But again, nine cases -- I'm sure you could find nine cases going the other way as well.

FEINSTEIN: Thank you. I want to move on.

A number of people on our side are very concerned about executive power and what we perceive, either rightly or wrongly, to be a greatly expanded executive authority in recent years, causing enormous concern in a number of different ways.

Let me go back into your past. In trying to get Senate documents, one of the documents withheld was a draft memo titled "Establishment of NHAQ, The Nicaraguan Humanitarian Assistance Office." This office was used by President Reagan to give aid to the Nicaraguan Contras following the passage of the Boland amendment. And that was a prohibition on providing funding to the Contras.

What involvement did you have with the Nicaraguan Humanitarian Assistance Office?

ROBERTS: I'm not familiar with the memorandum. If it was withheld, it was probably withheld from me as well, and I don't recall any involvement.

So I don't recall any -- I do know there was an issue -- an issue was raised. I have seen memoranda that I know have been released about private fund-raising activities. And I do know that I gave advice in order to make sure that they didn't engage in lobbying activities in order to be consistent with the Boland amendment. I've seen those, but beyond that, I'm not recalling anything.

FEINSTEIN: Do you believe that the administration's provision of funds to the Contras exceeded the executive's power in light of the Boland amendment's prohibition on funding the Contras?

ROBERTS: You know, it's not something -- I just, sort of, know what I've read in the papers about it. And, you know, it seemed to me that it did. But again, that's just based on -- it's not based on a study or a legal analysis.

ROBERTS: Just sort of -- I think a lot of it...

FEINSTEIN: Well, it's a pretty simple question.

I mean, when the Congress passes a law that says "Don't fund" and the executive finds a covert way to fund -- and, as you know, one of the great redeeming qualities of President Reagan was that he did an admission of wrongdoing, and I think the American people accepted that. He was able to admit a mistake, which I tend to think is hard to do in this arena. But in a way, it's a sign of a big person to be able to come forward and say, "I was wrong."

So on its face, what you're saying, if I understand you, you do believe that the provision of funds exceeded the executive power in this instance.

ROBERTS: Well, again, I haven't done a legal study, but based on what I know, which is just what every citizen knows from reading this -- I think all of this took place after I was no longer in the government or at least, came to light after that -- it seemed to be inconsistent with the law.

FEINSTEIN: Let me ask you a general question, then.

If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?

ROBERTS: Well, the answer depends, Senator. And this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories: You can act with Congress' support, be unclear what Congress' position is, and he recognized a third category where an executive may act in the face of a congressional prohibition.

And there are certain areas where the executive does have authority to the exclusion of Congress. Without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that's given expressly to the president under the Constitution.

And if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution? That's a difficult question, but it may be that the president's authority would trump Congress' authority.

So I can't answer a question in the abstract without knowing exactly what the record is and what the situation is. What Justice Jackson said in Youngstown, though, is obviously true, that if the president is acting in the face of congressional opposition, his power is at its lowest ebb.

ROBERTS: As Jackson put it, "It includes his powers, less whatever powers Congress has."

So if it's in an area in which Congress has legitimate authority to act, that would restrict the executive's authority.

BLITZER: John Roberts answering questions from Diane Feinstein, the Democrat senator for California. We're going to continue to monitor that hearing. We're also monitoring other important developments around the country, Hurricane Ophelia along the Carolina coast. We're going to update you on that. Much more of our coverage from here in THE SITUATION ROOM right after this.

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