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updated 7/24/2005 12:05:19 PM ET 2005-07-24T16:05:19

PLEASE CREDIT ANY QUOTES OR EXCERPTS FROM THIS NBC TELEVISION PROGRAM TO "NBC NEWS' MEET THE PRESS."

Sunday, July 24, 2005

GUESTS:  Fred Thompson, Adviser to Supreme Court Nominee John Roberts & former senator, R-TN; Sen. Dick Durbin, D-IL, Assistant Minority Leader, Democratic Whip Judiciary Committee; David Gregory, NBC News White House Correspondent; William Safire, New York Times ; Stuart Taylor, National Journal & Nina Totenberg, National Public Radio Legal Affairs Correspondent

MODERATOR/PANELIST: Tim Russert, NBC News

MR. TIM RUSSERT:  Our issues this Sunday:  The president nominates John Roberts to be the next Supreme Court justice.  What should Americans know about his views on abortion, the environment, business and labor, civil liberties and more?  With us:  the Bush White House point man for the nomination, actor and former U.S. senator, Fred Thompson; for the Democrats, the number-two man in their Senate leadership, Senator Dick Durbin of Illinois.  Thompson and Durbin, only on MEET THE PRESS.

Then, the politics of the Roberts nomination, the future of Karl Rove and the protection of confidential sources; insights and analysis from David Gregory of NBC News, William Safire of The New York Times, Stuart Taylor of the National Journal and Newsweek magazine and Nina Totenberg of NPR.

And in our MEET THE PRESS Minute, Paul Duke died this week at the age of 78. He worked at NBC News for 10 years before becoming the longtime host of PBS' "Washington Week in Review."

But first, the man who's been making the rounds on Capitol Hill with John Roberts, former Senator Fred Thompson.

Welcome.

MR. FRED THOMPSON:  Thank you.

MR. RUSSERT:  Democrats are saying they need to know more about John Roberts, and are suggesting that he worked as--in the solicitor general's office, he worked as a--in the White House counsel's office.  They'd like to see his memo, some of his paperwork.  Will that be provided by the Bush administration?

MR. THOMPSON:  Well, in the first place, Judge Roberts hopes that everything that the Senate needs and is appropriate for them to have, they'll have, and he'll do his part along those lines.  If I understand what you're talking about--and I must say that the committee has not asked us for anything yet.  I understand some people have started talking about it.  If I understand what they're talking about, you're talking about, at least in part, some attorney-client privilege material, and the administration's been pretty consistent on that, in fact, I think very consistent, in that those things will not be forthcoming.

Roberts is the attorney in this case.  It's the client's privilege to waive; it's basically up to the White House.  But the White House has gone along with what all living solicitors general have taken a position on, and that is this is a bad idea.  Internal documents, memos about ongoing litigation and people's recommendations and positions and things like that, there are lots of good reasons why that is a bad idea.  And Democrats and Republicans, Archibald Cox on down, have taken that position.  That's been the White House's position.  And we hope we don't get into a situation where documents are asked for that folks know will not be forthcoming and we get all hung up on that. But as far as Roberts is concerned, you know, he hopes it's worked out.

MR. RUSSERT:  So you would view it as inappropriate to ask for his work product while he worked in the White House counsel's office.

MR. THOMPSON:  Well, as I say, it's--in large part, it appears to be attorney-client information and things, that--conversations that he has with his priest, conversations he has with his doctor or his wife or his client are matters that are off-limits, basically.

MR. RUSSERT:  Senator Sam Brownback, who's a conservative Republican, said, he "isn't sold on John Roberts just yet, not by a long shot.  ...Brownback, one of the Senate's leading social conservatives, has concerns about Roberts' views on key issues such as abortion.  ...  `In the past, we've seen that if someone is not well articulated on a position, the tendency is to move left on the bench,' Brownback said, citing Justice David Souter as an example."

How will you meet Senator Brownback's concerns on the issue of abortion?

MR. THOMPSON:  Well, of course, Judge Roberts is going to be the one that meets that.  I'm merely an observer of the scene.  I'll tell you what it appears to me, and it appears to me that Judge Roberts is going to convince everybody when the day is done that not only is he probably one of the best qualified nominees to ever come down the pike, that he's a person of integrity and a person who will be fair- minded and open-minded about these issues, and that he'll take these cases, not as opportunities to come out with some broad social policy, but as opportunities to decide the litigation before him based on the facts and the law that is before him.  And he will do that whether the issue is abortion or whether it's a rear-end collision case.

In terms of asking these judges, sitting judges, prospective judges' opinions, that's not appropriate.  They give opinions from the bench, and opinions about cases that are pending, certainly, but other cases that have similar fact patterns that might come up before the court again, rendering opinions under the broad lights of essentially the political situation, political exercise, without having the briefs and the arguments and time to contemplate the factual situation and so forth, is a bad idea.  It's inappropriate, and that's been the position taken by both Democratic and Republican nominees in times past before the committee.  Judge Roberts will fit right in the tradition of other nominees that have successfully passed and gotten, you know, 95, 96 votes out of the Congress, by taking the position that I've just said.

MR. RUSSERT:  Here's the concern raised by some people on the Hill.  In 1990 when Judge Roberts was working in the solicitor general's office, he wrote this:  "We continue to believe that Roe was wrongly decided and should be overruled ... the Court's conclusions in Roe that there is a fundamental right to an abortion ... [has] no support in the text, structure, or history of the Constitution."

Thirteen years later when he was seeking to be put on the Court of Appeals, he testified this, "The statement in the [1990 Rust vs. Sullivan] brief was my position as an advocate for a client. ... Roe vs. Wade is the settled law of the land.  It's a little more than settled.  ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent..."

Is it fair to ask John Roberts what his view is as to whether or not he believes Roe vs. Wade was properly decided?

MR. THOMPSON:  In my opinion, it's not.  That first instance you talked about, he was a litigant.  I think it's enough said about that.  He was representing a client, the client's position.  In the second case, he was looking at it from the standpoint of an appellate judge, looking up at the Supreme Court that had made this decision.  And, of course, it was law that he must follow as an appellate court judge.  I think that these nominees that come before this committee, it's tough on both sides.

The senators have a right to ask pointed questions.  They want information. There's a lot of information out there.  We can talk about what he can talk about.  We can talk about all the information that they have about him. There's a lot of it out there.  But still they need to probe him.  He, on the other hand, if he's going to go up there and sit next to these sitting justices who have been through this confirmation process and have properly told folks that they cannot give opinions in this Senate hearing situation because they must maintain not only the reality, but the appearance of objectivity in cases that might come before them on similar factual patterns and situations, then, you know, he's put in a difficult situation.  He wants to be forthcoming, but there are certain limits that have been traditionally inappropriate to go into.

They can ask any question they want to, but he's got to decide based on ethical considerations and past history what he can properly go into.  These are things that usually are not even contested in most cases.  Your read the transcripts of most of these nominees that have come before, they haven't been pushed up against the wall anyway on these kinds of questions and these kinds of issues and then they go on to pass with 96, 97 votes.

MR. RUSSERT:  But Ruth Bader Ginsburg, who appeared in 1993, said this.  "[A decision on abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself.  And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."

That's a very specific comment on the issue of abortion at her hearing.

MR. THOMPSON:  Well, she also took the position on many, many, many instances during those hearings that she couldn't comment on cases either past or future cases.  And she even wrote an article saying that--and her observation of the Judge Bork hearings that Judge Bork perhaps went too far in trying to answer these same kind of questions.  So each justice or prospective justice has to make their own determination about that, but the pattern with Justice Ginsburg and Justice Breyer and Justice Rehnquist, all of them, has been remarkably similar, that there's a line which they can't properly cross just to bargain with the Senate, as it were, to get a job.  They can't be put in that position.

MR. RUSSERT:  The American people are being polled on this issue obviously and the question asked by The Washington Post, "Should John Roberts state his position on abortion?"  Yes, 64 percent; no, 34 percent.  That's overwhelming.

MR. THOMPSON:  That can't be decided on polls any more than cases can be decided on basis of polls.

MR. RUSSERT:  The interesting thing in all this is that when you have John Roberts arguing on behalf of his client, he's saying it should be overturned; then in seeking to be on the Court of Appeals, he said, "Well, it's settled law, it's precedent."  But once you're on the Supreme Court, anything can be unsettled.  Brown vs. Board of Education was settled law, separate but equal.

MR. THOMPSON:  Plessy vs. Ferguson.

MR. RUSSERT:  And he could, as Supreme Court judge, decide that it was not properly decided and should be returned to the states, but we'll never know that until he becomes a justice.

MR. THOMPSON:  That's the way it is.  That's the way it's always been.  People just can't render opinions while they're sitting there.  It is true that a couple hundred occasions anyway, the Supreme Court has reversed itself.  But all you can ask for is for a person to be open-minded, to listen carefully to the factual situation that's before them.  Judge decides policy, or at least the--I mean, don't decide policy.  At least they shouldn't.  They decide cases, a particular factual pattern, a particular applicable body of law. He'll look at all that.  He'll look at the Constitution.  He'll be open-minded.  He holds himself out to perhaps be persuaded by his own colleagues, as I've heard him talk about, as happened in times past on the Court of Appeals, and be fair and open-minded about it based on his own experience and views.  And that's what the president promised in his nomination, and that's exactly the kind of person that he's got.  The president hasn't asked him these things.  I haven't asked him or talked to him about these things and...

MR. RUSSERT:  Has anyone on the White House staff, anyone involved in the vetting or interviewing process asked him about his views on Roe vs. Wade?

MR. THOMPSON:  No.

MR. RUSSERT:  Nobody?

MR. THOMPSON:  No.  I mean, you know, I'm not privy to every conversation, but I'd be shocked and amazed, and I've been assured that they have not.

MR. RUSSERT:  There have been a series of newspaper articles about John Roberts' wife and her role in a group called Feminists for Life.  Is that fair to talk about her positions?

MR. THOMPSON:  No.

MR. RUSSERT:  Do you think...

MR. THOMPSON:  No.  I don't think anybody's really going to go down that road of this professional woman and whether or not she ought to have a right to have her own associations.  I will say that this particular group that you're talking about is--most of their emphasis, as I understand it, is helping young girls.  They've joined with Planned Parenthood and other associations, you know, in common endeavors along those lines.  But this is a professional woman who has her own associations and her own ideas, and I assume that her husband's proud of her for that.  But...

MR. RUSSERT:  You don't...

MR. THOMPSON:  ...she's not been nominated for anything.

MR. RUSSERT:  And you don't expect that to come up in the hearing?

MR. THOMPSON:  I would be very surprised.

MR. RUSSERT:  Let me ask about another comment John Roberts made a couple of years ago.  "I don't think it can be said that this [Rehnquist Court] is a strongly conservative court."  Do you agree with that?

MR. THOMPSON:  Do I personally agree that the Rehnquist court is not a conservative court?  Yeah, I would agree with that.

MR. RUSSERT:  Why?

MR. THOMPSON:  Well, you know, bring me back again and give me a half-hour, but I will tell you what's relevant, I think, to what we're talking about today, and that is that Judge Roberts, I've heard him say, doesn't believe a lot of these labels because people use them at different times to mean different things.  Sometimes the same people use these labels in different ways at different times.  He views himself as a person who approaches his job in a modest way, that he understands that people have gone before him, people have laid down precedent.  He's got to pay close attention to that.  He's got to pay close attention to his colleagues.  But the proper role of the court and of the judge is not to get up in the morning, decide what he thinks.  He needs to listen to the facts and the law.  And I also heard him say that nobody rushed up a hill in the face of enemy fire for Judge Roberts to have his way.  They did it for the rule of law, and for the courthouse doors to swing open equally to the rich and the poor, the big and the little, and that's the kind of guy you've got here.

MR. RUSSERT:  Sandra Day O'Connor, who is leaving the court, had this to say. "He's good in every way, except he's not a woman.  I am disappointed, in a sense, to see the percentage of women on our court drop by 50 percent."

Will that be an issue?

MR. THOMPSON:  Oh, I doubt it.  I mean, the question is whether or not this nominee is qualified.  And those issues that you mentioned are decisions that the president will make.  And he, in this instance, his--I think chosen someone not based on any criteria, other than someone who he feels like is extremely well-qualified and is a guy who's excelled academically, he's excelled professionally.  He got letters signed by 150 lawyers, Democrat, Republican, and otherwise, saying that he is one of the most highly respected public advocates in the nation; that kind of a person who will apply the law and the Constitution, as it's supposed to be applied.  And that's all you can really ask, I think, of a nominee.

MR. RUSSERT:  Absent something totally unexpected in the hearings, do you expect him to be overwhelmingly confirmed?

MR. THOMPSON:  Oh, I'm optimistic.  I think things have gone well and will continue to.  But it's the early stages yet.  There are going to be some tough questions and tough sledding.  There are many groups out there trying to dig up whatever they can, and I'm sure that there will be some ups and downs. We're not assuming anything at all.  But if it winds up based on the merits of the case, he'll be overwhelmingly confirmed because, quite frankly, in terms of judicial temperament or the kind of guy he is or the kind of respect he has from people who know him and being a fair-minded and compassionate individual and his professional acumen, he'll be confirmed overwhelmingly.

MR. RUSSERT:  Senator Fred Thompson, as always, we thank you for sharing your thoughts.

MR. THOMPSON:  Thank you.

MR. RUSSERT:  Coming next, the Democratic whip and Judiciary Committee member in the U.S. Senate, Dick Durbin of Illinois.  He met with Supreme Court nominee John Roberts on Friday.  We'll get his views on this nomination and confirmation process.  Next, right here on MEET THE PRESS.

                               (Announcements)

MR. RUSSERT:  Democratic Senator Dick Durbin on the Roberts nomination.  Plus insights and analysis from our political roundtable, after this brief station break.

                               (Announcements)

MR. RUSSERT:  And we are back.

Senator Durbin, welcome.

SEN. DICK DURBIN, (D-IL):  Thank you.

MR. RUSSERT:  You just heard Senator Thompson say that in terms of memos and paperwork from when John Roberts worked in the White House counsel's office, that will not be forthcoming because it's protected attorney-client information.  What's your view?

SEN. DURBIN:  Well, I don't think our committee's made any decision yet about the documentation, but we should go back to the beginning here.  I believe that John Roberts, despite his great resume and all of the positive things that can be said about him, still has the burden of proving something.  He needs to prove that he is worthy of a lifetime appointment to the highest court of the land, the court that really stands as the last refuge for the rights and freedoms of the American people and that he will serve there most likely, if approved, 20 or 30 years.  So we need to know things about him that two years on the bench in the District of Columbia don't tell us, whether that's through documentation or his answers to questions.  What I said to him the other day, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue."

MR. RUSSERT:  But when Stephen Breyer was nominated to the Supreme Court by President Clinton, the Republicans didn't ask for his memos when he worked at the Justice Department or on the Senate Judiciary Committee, did they?

SEN. DURBIN:  Well, a lot has to do with whether or not you can fill in the empty vessel with the information that tells you about this person and is the documentation an important part of it?  We felt that it was in the Miguel Estrada nomination, for example.  There was so little else to deal with, to work with.  And so, when you look at John Roberts, who has risen to the highest levels in terms of practice of law in the private sector and public sector, I think there have been important questions raised about things that he said and things that he wrote when he was working for the government.  I'm not going to rule that out.  That may be an important part of this process.

MR. RUSSERT:  On Tuesday night, you said that his nomination would be controversial, but on Wednesday, you were on the floor and said, "President Bush has nominated John Roberts...  a very well- qualified person...no question about this man's legal skill--none at all.  Nor has there been any serious questions of any kind raised about his integrity, his honesty.  I have not heard a single word suggesting he does not have the temperament to be a federal judge."

So why would you oppose him?

SEN. DURBIN:  Because there's more, because I have an obligation as a member of the Senate, representing not only Illinois, but speaking for those in the nation who are following this, to ask critical questions about where he stands on mainstream values in America.  It's not enough to say all of those things, legally skilled, honest and a good temperament.  I need to know if his views fall within the mainstream on critical issues, issues like workers' rights and women's rights and civil rights and the protection of the environment.  I think the American people want to know that the person going to the court is in that mainstream when it comes to these values.

MR. RUSSERT:  You mentioned that--you heard my conversation with Senator Thompson about abortion, where, when he was representing the solicitor general's office, he said Roe vs. Wade should be overturned.  When he was nomination for the Court of Appeals, he said it was settled law and that he saw is as precedent in terms of applying it as an appellate judge.  When he was seeking that judgeship in 2003, you voted against him.

SEN. DURBIN:  That's right.

MR. RUSSERT:  And you said, "He was not candid in his answers.  He said Roe vs. Wade was settled law.  I didn't think that was a very responsive answer. I want an honest answer."

What's wrong with saying it's settled law?

SEN. DURBIN:  Well, because of course, at that point, he was aspiring to the circuit bench, which is to follow the law of the Supreme Court, the decisions of the Supreme Court.  In this case, he is aspiring to that high court which can change the law and so we need to know more.  And, Tim, I think it gets down to the basics.  It's a question about the values and principles that guided Roe vs. Wade.  What Justice Blackmun was trying to achieve in that decision was to recognize the right of privacy, a right of exclusion so that there are parts of our lives, our personal and family lives, the government can't intrude upon.  And in this situation, I think we have a right to know where John Roberts stands when it comes to fundamental issues of privacy and personal freedom.  So if he doesn't want to address the question up or down, "Are you for Roe vs. Wade?" he at least has an obligation to tell us if he believes, that within the four corners of the Constitution, we have a right of privacy, as was decided in Griswold and in Roe vs. Wade.

MR. RUSSERT:  It's interesting, because in your own political past, when you were a congressman in the House of Representatives in 1983, you believed that Roe vs. Wade was incorrectly decided.  You filled out a questionnaire calling for a constitutional limit to ban all abortions.  You wrote a constitute saying that "The right to an abortion is not guaranteed in the U.S. Constitution."

SEN. DURBIN:  I'll concede that point to you, Tim.  When I came to Washington...

MR. RUSSERT:  So are these views out of the mainstream?

SEN. DURBIN:  Well, at that point, I can tell you I came to Congress not having seen what I think is the important part of this debate and not understanding, if you will, really what was behind it.  You know, it's a struggle for me.  It still is.  I'm opposed to abortion.  If any woman in my family said she was seeking abortion, I'd go out of my way to try to dissuade them from making that decision.  But I was really discouraged when I came to Washington to find that the opponents of abortion were also opponents of family planning.  This didn't make any sense to me.  And I was also discouraged by the fact that they were absolute, no exceptions for rape and incest, the most extraordinary medical situations.  And I finally came to the conclusion that we really have to try to honor the Roe vs. Wade thinking, that there are certain times in the life of a woman that she needs to make that decision with her doctor, with her family and with her conscience and that the government shouldn't be intruding.  It's true that my position changed, but as Abraham Lincoln said when they accused him of changing his position, "I'd rather be right some of the time than wrong all the time."

MR. RUSSERT:  You said this in 2005, July 3, Chicago Tribune, "I'm looking for [a Supreme Court nominee] who's truly independent and balanced in their approach.  They don't have to agree with me on every issue, but I do want to see in that person an open mind."

If John Roberts said to you that his views on abortion were exactly those that you had in 1983, would you vote for his confirmation?

SEN. DURBIN:  I would like to hear from him as to whether or not he has at least thought through or struggled with this decision on the future of reproductive rights in this country.  I'd like to hear from him that even if he might disagree on a variance of Roe vs. Wade, that when it comes down to the basics, when it comes down to right of privacy, he will acknowledge that is part of our right and our legacy as Americans and that he would acknowledge, as well, that this is an issue of personal freedom.  So it isn't that I want to pin him down on this so much as understanding the thinking that would go behind the next decision.

MR. RUSSERT:  But as he said, Senator, "I believe it should be a decision made by the states," which is what you said in 1983.  Would that disqualify him?

SEN. DURBIN:  I would think at this point that it would trouble me greatly, because I believe that from this point of view, I think that many of us believe that this is an old debate that just keeps recurring.  It's not.  It is a debate that is topical.  Just a few months ago in Congress, we were embroiled in a controversy over the tragedy of Terri Schiavo.  Here was a family making a decision that hundreds of families across America have made today about a loved one and whether she would continue to receive certain medical support.  The decision of some--in fact, many on the same side politically as the president--was that the government should step in, the federal court should step in, into that hospital room to make that decision for the Schiavo family.  So what I'm saying to you is this is an issue of privacy and freedom that will continue to come back to us.  I need to know, most importantly, from Judge Roberts, what drives him on these decisions? Where are his values?

MR. RUSSERT:  On Schiavo, not one Democratic senator stood up and objected.

SEN. DURBIN:  But there was a much different debate in the Senate than in the House.  You know, I was part of it and I watched as Senator Carl Levin and others went through the original bill passed by the House and changed it dramatically.  No mandate on the court.  No necessary intrusion of this personal decision.  I thought we did a more responsible thing on the Senate side.

MR. RUSSERT:  You heard Senator Thompson say other than Robert Bork and Ruth Bader Ginsburg-- 'cause she had written about the subject--Justice O'Connor, Justice Thomas, Justice Breyer, none of them talked about abortion in the kind of "candid way" that you're now demanding of John Roberts.

SEN. DURBIN:  I don't know that I'm demanding more of him than you should demand of any nominee.  I don't want him to tell me up or down, Roe vs. Wade, would you vote to overturn it.  I really, though, think it's fundamental here. The American people expect us, I think in this process, to find out what is really driving the thoughts and the heart of the individual who's seeking this nomination.  If I didn't do that, we'd be putting someone on the court without an understanding as to whether they would be independent, whether they'd be balanced and have an open mind.  This is the last refuge for America's freedoms and rights and I think we have a special obligation to understand what goes into the value judgments of those seeking this bench.

MR. RUSSERT:  You use the phrase open mind.  Governor Bill Clinton when he was running for president in April of '92 had this to say.

(Videotape, April 5, 1992):

GOV. BILL CLINTON, (D-AR):  And I will appoint judges to the Supreme Court who believe in the constitutional right to privacy, including the right to choose.

(End videotape)

MR. RUSSERT:  That was a commitment that the people he'd nominate to the Supreme Court would believe in a right to privacy, the right to choose. Doesn't George Bush, as a Republican, have the same opportunities as Bill Clinton, the Democrat, to put people on the court who share his philosophy?

SEN. DURBIN:  Well, it's interesting.  When you asked Senator Thompson this question, he said that he didn't believe that Judge Roberts had even been asked this question by anyone in the White House, based on his conversations with Judge Roberts.  I don't know the answer to that, but I can tell you there's an interesting thing going on here.  You recall, as I do, that many of the far-right groups were opposed to the concept of Alberto Gonzales being elevated to the Supreme Court.  In fact, the president came to his defense at one point, thinking that they'd gone too far.  I asked Judge Roberts the other day, "What happened here?"  Within a matter of 24 hours, all of these groups pivoted and said, "We are completely behind John Roberts."  I said to him, "What do they know that I don't know about you?"  And so there are a lot of unanswered questions here.  I would...

MR. RUSSERT:  What did he say?

SEN. DURBIN:  He said that he didn't understand the political process or what motivated these groups, but I think it's a legitimate inquiry.  And it really calls on him to satisfy the curiosity or the inquiry from people like myself as to what he really believes here.  And as I said, I'm not looking for a litmus test.  As important as reproductive rights and women's rights are, I just basically want to know that if the next case involving privacy and personal freedom came cup, what do you believe?

MR. RUSSERT:  If he said he did not see a right of privacy in the Constitution, would that...

SEN. DURBIN:  I couldn't vote for him.

MR. RUSSERT:  That would disqualify him?

SEN. DURBIN:  It would disqualify him in my mind.

MR. RUSSERT:  And how specific will you get on your questions about Roe vs. Wade?

SEN. DURBIN:  Oh, I might get very specific, but I've had an experience with him before.  He wasn't that specific in his answers when he was up for the D.C. Circuit Court of Appeals.  But I'm going to try, as best I can, to stay in that acceptable area where we do ask questions that he can answer.  And I think if we stick to questions of constitutional values and traditional philosophy, we can find out whether he is truly going to be balanced.

MR. RUSSERT:  And yet, Ruth Bader Ginsburg, who said she believed in a woman's right to choose founded in the Constitution, was confirmed 96-to-3; conservative Republicans, right-to-life Republicans voted for her because on the merits, they found her to be qualified to be on the court, even though they disagreed with her philosophy or interpretation.

SEN. DURBIN:  But remember the process; so much different than this one. This was a process where you had President Clinton calling Orrin Hatch, the Republican chairman of the Judiciary Committee, actually vetting names through Orrin Hatch, "Which person do you think you can move through this committee and through the Senate for confirmation?"

MR. RUSSERT:  You were asked for names.

SEN. DURBIN:  Well, I did give names.  I gave at least one name.  I'm not sure that I didn't give the kiss of death to that name.

MR. RUSSERT:  But 70 senators were consulted.

SEN. DURBIN:  Well, the consultation consisted of a conversation with Andrew Card, which I appreciated, where he asked about the process and asked for a name or two.  That's all well and good.  But it didn't reach the level that it reached under previous presidents, like President Clinton, where he actually sat down, or at least in a telephone conversation, asked Orrin Hatch, "Is this a nominee that you can work for and support?"  I think that creates a much more bipartisan atmosphere than we have at this moment.

MR. RUSSERT:  As of now, do you think he'll be confirmed overwhelmingly?

SEN. DURBIN:  I think it's too early to tell, and I think those who are taking this job seriously are not jumping up to say they're for or against Judge Roberts.  He deserves his day on the Hill.  He deserves an opportunity to answer these questions honestly.  And as I said to him, I'm giving him a clean slate, giving him his chance.

MR. RUSSERT:  Before you go, a month ago, you got in a lot of trouble politically.  You said, "Richard Durbin...[compared] the treatment of prisoners at the naval detention center at Guantanamo, Cuba, to the interrogation tactics of the Nazis and the Soviet gulags."

Is that the biggest mistake you ever made in your life?

SEN. DURBIN:  Well, it's the most visible one.  I've made a lot of mistakes, and I'm not too vain as to concede the fact that I needed to use better words. It was a poor choice of words.  But it still is an important issue.

MR. RUSSERT:  They were wrong.

SEN. DURBIN:  Well, it was wrong in terms of what it led people to conclude. I certainly was not demeaning our men and women in uniform.  The interrogators at Guantanamo I referred to might not even have been soldiers, for that matter.  And to go so far as to mention the Nazis and such, I left myself wide open to my critics.  But let me make it clear...

MR. RUSSERT:  But it was a mistake to say it.

SEN. DURBIN:  Well, that's why I apologized.  But let me make it clear, I think we have to be very sensitive to what's happening in our interrogation and treatment of detainees and prisoners.  This is something that we have to live with, not only in the world today, but are going to have to live with for generations to come.

MR. RUSSERT:  Senator Richard Durbin, as always, we thank you for your views.

SEN. DURBIN:  Thanks, Tim.

MR. RUSSERT:  Coming next, our political Roundtable.  David Gregory of NBC News, William Safire of The New York Times, Stuart Taylor of The National Journal and Newsweek magazine, and Nina Totenberg of National Public Radio. Then, our MEET THE PRESS Minute:  Former NBC News correspondent Paul Duke.  He died this week.  He appeared on MEET THE PRESS many times.

                               (Announcements)

MR. RUSSERT:  And we are back.  Welcome, all.

Bill Safire, the John Roberts nomination, what do you think?

MR. WILLIAM SAFIRE:  I think he's going to face what we call a murder board. You know what a murder board is?  It's when a bunch of people line up and toss their toughest questions in the world at you beforehand.  And then when you go in, you're prepared for it.  Judge Roberts has appeared before the most effective murder board in the world, which is the Supreme Court, time and time again.  He knows how to handle these questions.  And the ultimate decision will be made in those hearings.  And I think he is uniquely qualified to handle himself with grace and good humor and intelligence in front of the questioning of the senators just as he's shown in front of the questioning of the members of the Supreme Court.

MR. RUSSERT:  Nina Totenberg, how specific do you see the questioning getting?

MS. NINA TOTENBERG:  Well, Judge Roberts will have to answer questions only when he has to.  I mean, he will answer the questions that he needs to to get confirmed.  And for anybody who's been through these things before, the nominee goes in with instructions and preparation to do as little as possible. And if you look back, for example, at the Rehnquist hearings for chief justice, Arlen Specter said to William Rehnquist basically, "I'm not going to vote to confirm you if you don't tell me what your views are on applying the Bill of Rights to the states."  And eventually, Bill Rehnquist did that.  And he didn't want to, but he had to.  I mean, the Democrats don't have the votes to defeat Roberts, so you just have to wait and see how the chemistry of the hearing goes.

MR. RUSSERT:  Do you think his wife's views or wife's activities will be involved in any way, shape, or form in the hearings?

MS. TOTENBERG:  Not publicly.  I think, you know, it's consciously in everybody's mind.  But nobody's going to say, "Well, gee, your wife is a member of a pro-life organization.  How can you be different than her when you're on the court?"  Nobody's going to say that.  They may think that.  But that's--you know, they need to get re-elected.  They're not going to do that to him.

MR. RUSSERT:  Stuart Taylor, you heard Fred Thompson saying that he would advise the judge not to answer specific questions about Roe vs. Wade.  You heard Dick Durbin say that he was going to ask those kinds of questions. Where does it come down?

MR. STUART TAYLOR:  I think, as Nina says, it comes down to the nominee sensing how much he needs to reveal in order to ease his confirmation.  And I think he'll find probably an effective combination.  As an ethical matter, I think nominees should try to hold back much more than ethics requires them to. Justice Scalia, in a decision a couple of years ago, made it clear that for judicial nominees, this is judicial candidates in elections, that is the same issue to discuss, to some extent, views on political and social issues and legal issues is fine.  It's their First Amendment right.  But they don't have to.  The only thing a senator who's unhappy can do is say, "I'm going to vote against you," and there aren't enough vote; "I'm going to filibuster," and there aren't enough votes to do that either.

MR. RUSSERT:  David Gregory, the White House, how are they feeling after this first week?

MR. DAVID GREGORY:  Quite confident.  I thought it was striking that the president used a prime-time format to introduce Judge Roberts.  Here is somebody who is reliably conservative, who has strong credentials that nobody disputes, and who seems to be a very likable guy.  And even Chuck Schumer and other senators on the Democratic side say that's certainly the case.  And I think the White House wants to present the whole family here, and as somebody who's got the sort of temperament and qualifications to serve on the high court.  And I think in the hearings as a political matter and a legal matter, this is where philosophy matters.  I think people are trying to discern his personal views on abortion.  He may very well be anti-abortion rights.  But as a matter of law and as a matter of judicial philosophy, it's a separate question as to what he might do on the Supreme Court.

MR. RUSSERT:  And yet Fred Thompson said that the president--and he does not believe anyone in the White House staff has asked Judge Roberts about his views on Roe vs. Wade, and you heard Senator Durbin say, "Ask him, `Why are a lot of the conservative groups embracing you but were rejecting Alberto Gonzales, the president's attorney general, because they were concerned about him on abortion issues?'"

MR. GREGORY:  Right, and that goes back to a Texas case when the attorney general was a judge in Texas and made some views known that conservatives felt actually had him on a certain decision.  But I think in this case, this is a Washington figure who's been very careful about what he's said and what he's written on this topic and I think the White House is pleased about that fact, and in fact, had to spend some time convincing conservatives that he was reliably conservative.

MR. RUSSERT:  President Bill Clinton was very clear as a candidate, Bill Safire, that he would only appoint people to the court who would uphold Roe vs. Wade.  Why don't Republicans step forward and say, "We're going to put people on the bench who are going to overturn Roe vs. Wade"?

MR. SAFIRE:  Because that would be foolish politically and I think there's a lot of practicality going on.  And David was right.  This is a man who can stand up next to the president without holding up a card and reading his statement.  He can stand up and look you in the eye on television and impress you.  And I think that's going to do more than all the peripheral sniping that'll go on.

MR. RUSSERT:  Old Safire the speechwriter likes people who can speak extemp. I like it.  You're going to take us out of a job.

MR. SAFIRE:  Ah, but I'm sure he wrote it beforehand.

MS. TOTENBERG:  Yes.

MR. TAYLOR:  On index cards.

MS. TOTENBERG:  He's the most--he is the most prepared person I think I've almost ever seen before the Supreme Court.

MR. RUSSERT:  You've interviewed him.

MS. TOTENBERG:  I've interviewed him lots and lots of times, and he's been very generous with his time with reporters when he's got a case in front of the Supreme Court.  And you come in, he does an interview.  He knows everything about a case.  He has literally gone out to the place where he is defending, whatever, and walk the property, for example, if necessary.  He's that kind of person.

MR. GREGORY:  The other thing, Tim, I think is interesting is that the White House has sort of set this up from the very start.  Remember, even before a nominee was selected, they liked this Ginsburg model, somebody who is clearly ideologically liberal, but certainly qualified.  That's what they want for Judge Roberts, as well.  They want to dare Democrats to make this a fight about ideology, and they can say, "Hey, that's fundamentally unfair.  You got yours, we want ours."

MS. TOTENBERG:  Well, and John Roberts has most--you name every establishment Democratic lawyer in town, they know John Roberts, and they adore John Roberts, and they will go to bat for John Roberts.

MR. RUSSERT:  Stuart, will there be much of a fight over this paper trail? Will Democrats seek to get memos from the White House counsel's office, seek to get information from the solicitor general's office?

MR. TAYLOR:  They certainly will seek them.  In the early memos when he was in the Reagan White House, a lot of them have been made public already, so I'm not sure that they can draw a line there.  When he was in the solicitor general's office in the first Bush administration, those are more sensitive. My guess is that if it gets to be a big concern, they'll work something out where senior Democrats can go look, take a peek, and make sure there's nothing crazy in there.  And there isn't anything crazy in there, I can tell them without looking.  He's not that type of guy.  But you know what?

MR. RUSSERT:  Have you seen them?

MR. TAYLOR:  No, I haven't.  I haven't talked to him about abortion, either. But I would bet you a lot of money that he thinks Roe vs. Wade was wrongly decided and if he had to, he'd go right in there and say, "I thought it was wrongly decided, I always have, I always will," but that's a very different question from whether we should overrule it.  Three of the current Supreme Court members thought it was wrongly decided, four, I think, if you look at how they voted in the Casey case in 1992, but they said, "It's an important precedent, we don't go back and revisit that now."  And he could say, "I might or might not."

MR. SAFIRE:  And you know, Tim, Americans are going to learn a Latin phrase in those hearings.  It's the words, stare decisis.

MR. RUSSERT:  S-T-A-R-E.

MR. SAFIRE:  Right.  And it means standing behind a decision.  And the idea of upholding precedent is going to be a very important in this case, and just watch out for that Latin phrase, which I'm sure you learned in school.

MR. RUSSERT:  Four years of Latin, Canisius High School.  Thank you, Brother Bill.

Let me turn to the CIA leaked case investigation.  There have been numerous newspaper reports that the investigation is now focusing on perhaps perjury as opposed to the leak because the leak is difficult to prove under the law. What we know so far is that in terms of journalists, Walter Pincus and Glenn Kessler of The Washington Post, Russert of NBC, Matt Cooper of Time magazine have all testified, either in deposition or before the grand jury.  We assume Robert Novak has testified because Judy Miller of The Times who didn't testify is in jail.  And there's been numerous newspaper reports that there's a difference between the testimony of some of the reporters and Scooter Libby of Vice President Cheney's office and Karl Rove of President Bush's office.  Bill Safire, what do we make of all this?

MR. SAFIRE:  First, I make that it's absolutely outrageous for Judy Miller to be in jail today for a story she did not write and for defending the right of an individual to trust her when she's talking to her about journalistic matters.  She's in jail.  She's suffering there.  It's not a happy jail.  And I visited her there.  And what's this all about?  The great principle at stake here is the right to keep confidences given to you by a source.  Now, the government has all kinds of ways to get information--subpoenas, putting people under oath, giving them immunity to overcome the Fifth Amendment, wiretaps, all that.  What do reporters have?  We have one power which is the power of trust that people have in being able to talk to us and "not get involved." This is a powerful thing.  Attorneys general all over the country who have either shield laws or case laws in this state saying this helps law enforcement, this ability for trust to be established.  And to kick it in the teeth the way this prosecutor has is a real danger to the public's right to get information.

MR. RUSSERT:  Stuart Taylor, the prosecutor has argued that a crime may have been committed, and if a reporter has information which could bear on that crime, no person is above the law.  They are, therefore, obligated to come forward and say what they know.

MR. TAYLOR:  He has.  I agree with Bill and The New York Times, to its credit, has said what we're talking about here is civil disobedience.  We're not claiming we're above the law.  Martin Luther King did civil disobedience and that's what Judy Miller is doing.  And I applaud her courage.  At the same time, I think there are very important interests on the other side of the scale that make it a hard case.  The media was screaming for an aggressive investigation, a special prosecutor, get it away from attorney, we don't want politics to affect it, we want every stone overturned to get to the bottom of this, who in the White House was trying to stab the CIA covert agent in the back to get at her husband, and, you know, the prosecutor, according to the courts, has turned over every single rock he could possibly overturn to try and get the answer to that question, and the last rock is Judy Miller, and he doesn't have the answer yet.  So if I were he, I would feel a certain pressure to do what he's doing.  The bottom line, I think that the court should not let him do that, but they have let him do that.

MR. RUSSERT:  David Gregory, you've been asking question after question in the White House briefing room as to why the inconsistency of saying that Libby and Rove were not involved in this and as to the White House saying, "We're not going to comment."  What's the current thinking of the White House on this?

MR. GREGORY:  That they've got a big political problem at the very least. They were happy to change the subject to talk about Judge Roberts when they could this past week.  There's a political problem and then potentially a legal problem because I think what the special prosecutor is looking at right now is who might have actually blown Valerie Plame's cover, or did somebody lie, in their testimony, about their conversations with reporters?  The White House defense has been that they learned about Valerie Plame from reporters. There is now information, including a classified State Department memo, that may contradict that.  There at least is the potential that White House officials were aware of who she was, what she did and her role in sending her husband, Ambassador Joseph Wilson, to Niger to investigate this uranium-Iraq thing.

MR. RUSSERT:  There has to be an original source, somebody.

MR. GREGORY:  Yes.

MS. TOTENBERG:  Right.

MR. RUSSERT:  Even if it came from a reporter...

MR. GREGORY:  Right.

MR. RUSSERT:  ...the reporter got it from someplace.

MS. TOTENBERG:  Right.  And...

MR. RUSSERT:  But I was asked what I said.  I did not know.

MS. TOTENBERG:  Well--and we should remember here, I've been where not--I never had to go to jail, but you have to be willing to do that.  But having said that, what you have to remember is Valerie Plame- -it's not just Valerie Plame.  It's her whole network.  She was a person who had a network of people who dealt with her about weapons of mass destruction, and her whole network was put in jeopardy by the revelation of her identity.  And that's why this is a hard case.

MR. SAFIRE:  I disagree.

MR. GREGORY:  I do think that one--well, one point I disagree with Bill on is I agree that there should be a shield law, and this is an important conversation.  But I think what has to accompany that is the debate we have within journalistic circles about when we promise confidentiality and whether it is to put a check on government or whether it is to be a vehicle for what may have been an egregious abuse of power here in smearing someone who's part of our national security apparatus, and I think journalists have to be very careful about this idea of confidentiality, and I'm a little bit troubled, and perhaps at the facts of this case, that there is not more of a national outcry on behalf of Judy Miller and on behalf of the facts of this case.

MR. SAFIRE:  That's because we've concentrated on a so-called crime.  The crime supposedly was breaking the Intelligence Identities Act.  Now, if you read that act and you read the legislative history of it and the commentary by people who wrote it, it's a very tightly run thing to say that the agent must be affirmatively kept undercover by the government.  And here, this employee, Mrs. Wilson, shows up for work every morning at the CIA headquarters.

MR. RUSSERT:  But, Bill, she had an unofficial cover.  She was described by her neighbors as an energy analyst.  I don't think we're in a position of saying whether someone's covert or not.  That's up for the agency to decide.

MR. SAFIRE:  Take the next one.  I don't grant that, but take the next one. There has to be a knowing attempt of a pattern of action to undermine American intelligence.  That's a huge charge.  That's charging treason and...

MR. RUSSERT:  How's this going to turn out?

MR. SAFIRE:  I hope it turns out in the end that there is a federal shield law to protect the public's access to people who are able to blow whistles and to tell people what's going on in government.  Without that shield law, which exists in most of the states, in federal court, we need it, and that's why I hope the Congress will pass this law, and then the courts will, as they have invited the Congress to do-- then the courts will uphold it.

MR. RUSSERT:  Stuart, do you expect any indictments?

MR. TAYLOR:  You never know.  It would be awfully odd for a prosecutor to go to put as many people through as long an ordeal as this one has and then come up and said, "Well, I couldn't find anything."  Maybe that's one reason he's carrying it to this point.  If you look at all the signs, it appears the theory he may be pursuing, or one theory, is that people in the White House leaked this based on official information.  And by the way, there's another law that everybody's forgotten, that says you intentionally leak a classified document, you've committed a felony, bang; 1917 espionage law that's been used in the past to prosecute someone for doing that and for only doing that.

MR. RUSSERT:  To...

MR. SAFIRE:  Intentionally.

MR. TAYLOR:  Intentionally.

MR. RUSSERT:  To be...

MR. TAYLOR:  He knew it was leaked.

MR. RUSSERT:  To be continued.  We've got to go.

MR. TAYLOR:  Yeah.

MR. RUSSERT:  We'll be right back.

                               (Announcements)

MR. RUSSERT:  And we are back.  Paul Duke was an NBC correspondent for 10 years, covering Capitol Hill.  He appeared on MEET THE PRESS 62 times; the first, May 29, 1966.

(Videotape, May 29, 1966):

MR. PAUL DUKE (NBC News):  Mr. Nader, can we really have our cake and enjoy it, too?  Can we have safe cars and sporty cars?

MR. RALPH NADER:  Well, it depends what you mean by sporty.

MR. DUKE:  Well, that's the mode in Detroit today.

(End videotape)

MR. RUSSERT:  Paul Duke, a terrific journalist and true gentleman.  He and his family are in our thoughts and prayers.

And we'll be right back.

                               (Announcements)

MR. RUSSERT:  And we also remember this morning Peggy Dowd, a great lady and longtime viewer.  May she rest in peace.

Visit our Web site mtp.msnbc.com where you can now download and listen to MEET THE PRESS on your computer or MP3 player, the MEET THE PRESS podcast wherever and whenever you want.

That's all for today.  We'll be back next week.  If it's Sunday, it's MEET THE PRESS.

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