Excerpt from NBC News' Meet the Press
July 24, 2005

MR. TIM RUSSERT (NBC): 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. RICHARD DURBIN (D-IL): 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 constituent 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 up, 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.

To return to The Durbin Papers, click here.