• Sept. 15, 2005 | 1:45 p.m. ET

The emphasis of the Ticktock has been on the Q&A between the Judiciary Committee and Judge Roberts. With the conclusion of the third round of questioning, the blog has ended for the day.

The Roberts hearings are winding down with a parade of allies and opponents making brief statement to the Judiciary Committee.

VIDEO: Roberts confirmation | More MSNBC TV Witnesses speak out Sept. 15: Witnesses for and against Judge John Roberts are facing questions from the Senate Judiciary Committee. NBC’s Chip Reid reports. Questioning ends for Roberts Immigration rights Anti-affirmative action 'pattern'? Questions for nominee Schumer’s pro, con list

Wade Henderson of the Leadership Conference on Civil Rights, accused Roberts of failing “to distance himself from the anti-civil rights positions he has advocated” 20 years ago while serving in the Reagan Administration.

Henderson questioned whether Roberts in his 1980s persona would have approved of literacy tests and poll taxes to prevent black people from voting.

“He was on the wrong side of history,” testified Rep. John Lewis, D-Ga. “Judge Roberts, as a young attorney in the Reagan administration, failed to go with his gut.”

The spotlight has already shifted from this committee – when one can safely predict a party-line vote on Roberts – to the Senate as whole.

The interesting votes to watch in the Senate are a handful of conservative-to-moderate Democrats such as Ben Nelson of Nebraska and likewise a handful of liberal -to-moderate Republicans, such as Lincoln Chafee of Rhode Island. These senators are the center of gravity in the Senate.

I worked the Senate lobby during a roll call vote and can report that Nelson and another centrist Democrat, Sen. Mark Pryor of Arkansas, are sending unmistakable signals that they will vote for Roberts.

Who will be the next justice? Profiles: The Judiciary Committee Complete coverage: The Alito hearing

Here’s what Nelson told me: “I wanted to know whether Judge Roberts sought to be an adjudicator or a legislator. Is he going to take an agenda to the bench to try to effect changing the laws -- or is he going to decide cases? He satisfied me that his intent is to go and decide cases.”

Nelson did not explicitly say he would vote for Roberts, but his signals seemed clear.

“At this point in time, I don’t see any surprises,” Nelson said.  “Are there any disqualifiers? I’m not aware of any.”

Pryor told me he wanted to wait until the Judiciary Committee finished its work but, “Judge Roberts is a very impressive nominee.”

Asked whether Roberts had been evasive or unresponsive in his testimony, Pryor said, “I don’t feel that way, maybe as much as some of my colleagues do. I’m not sitting in the Judiciary Committee every day as they are. They have more expertise in examining nominees to the bench, but from my standpoint I don’t feel that he’s been that evasive.”

“I just want the very best jurist we can have… and he’s a very impressive nominee,” Pryor said.

But when we questioned another publicly undecided Democrat, Sen. Hillary Clinton, D-N.Y., she said “I’m going to wait until the hearings are totally over.” 

Supreme Court Fact Finder Explore related facts (launches window): Profiles: Nine justices who have the say The ideological evolution of 6 justices 10 landmark decisions Supreme Court superlatives Supreme Court nominations by president Justice O'Connor's swing vote clout How your senator voted on John Roberts How your senator voted on Samuel Alito

I asked her if she was going to read the hearing transcript.

“I’m reading some transcript and reading some very detailed reports of the questioning but it’s not over, so I’m going to wait until it is,” she replied.

“What criteria will you use to decide?” I asked her.

“I will announce that when I make my decision,” she said.

She, like the other 99 senators, will decide Roberts’s fate in the final week of September. Then we’ll know where all 100 stand.

And as Ralph Neas said, in 2006 and 2008 the voters can give their verdict on those senators’ votes.

• Sept. 15, 2005 | 12:25 p.m. ET

Jay Sekulow, the conservative lawyer who is helping the pro-Roberts effort told us during the break that he hoped Sen. Schumer would vote for Roberts, but as far as Schumer’s remark that he woke up in the middle of the night wondering how to vote on Roberts, Sekulow said, “He may have been waking up in the middle of the night, but perhaps because he saw the intellect of John Roberts. If he woke up in the in the middle of the night, it was because they (Democrats) could not tangle with John Roberts and succeed.”

Sekulow said we’d all be meeting each other again over the months ahead – because there’ll be more vacancies on the Supreme Court.

“For both sides, the Supreme Court is such a huge issue – we’ve got another vacancy to fill right here and then you just look at the age of the court and you realize, what’s left? There’s multiple vacancies in the next probably two or three years. You could be looking at the most significant shift in who is on the court in Supreme Court history.”

Standing right behind Sekulow as he was saying all this was Ralph Neas of People for the American Way.

Neas stepped up and told reporters that in three days of testimony, nominee Roberts had been cleverly using “his hidden ball trick. He has been concealing his judicial philosophy for three days. Two-thirds of Americans say they don’t have enough information to make a decision on John Roberts and he owed it to the American People and the United States Senate… to answer questions, but he has set an all-time record for refusing to answer questions.”

Neas said no one should declare the battle over.

“We still have two weeks left and I don’t think we should be looking forward to the next nominee… This one is not done yet. I think there’s going to be a close vote in the Judiciary Committee and if there is a close vote in the Judiciary Committee, I think it’ll be a close vote on the Senate floor.”

Then Neas got in a shot at chairman Arlen Specter: “the right wing and the White House is expecting him to vote for John Roberts. He has always marched in solidarity with President Bush over the past four and a half years. I hope he pleasantly surprises me and the country, but as great a questioner as he is… I think he is going to vote for the nominee.”

• Sept. 15, 2005 | 11:57 a.m. ET

Lauren Sokolski, from Silver Spring, Md., was here in the hearing room to witness today’s testimony this morning. During a break in the action she gave me her views on the Supreme Court and the nation.

Sokolski, who opposes Roberts, worked during the Clinton administration as a volunteer. I mentioned to her that her two senators, Democrats Barbara Mikulski and Paul Sarbanes, seem likely to vote “no” on Roberts, given how they have voted on other Bush conservative judicial nominees. If that turns out to be the case, then her views will be represented.

But, she told me, “Democracy is not working for me, because (the late chief justice William) Rehnquist decided Bush should be president (by his vote in the 2000 Bush v Gore case) and Rehnquist was first put on the court by Nixon – who subsequently resigned. I find the whole thing very ironic.”

Since Bush’s election in 2000, she said, “we live in fear of the government, because the government decides what the threat is. I strongly believe 9/11 would not have happened if Bush hadn’t been president.”

Later, as we chatted about Rehnquist, she added, “I like to think he died of guilt – for what he did to this country.” (LIVE VIDEO: Click here to watch the hearings in real-time.)

• Sept. 15, 2005 | 10:52 a.m. ET

Sen. Charles Schumer, D-N.Y., told Roberts he has woken up in the middle of the night wondering whether he should vote ‘yes’ or ‘no’ on Roberts.

This remark draws a world-weary smile of disbelief from Jay Sekulow, the conservative super-lawyer and a Roberts booster who is here in the second row of the audience in the hearing room.

Could Schumer vote “yes” on Roberts?

In theory, yes.

But it would seem to create a conflict of interest: Schumer is head of the Democratic Senatorial Campaign Committee, the whole purpose of which is to elect Democratic senators who could vote down President Bush’s conservative judicial nominees who in Schumer’s view are “way off the deep end.” (  NBC VIDEO: Judge Roberts, responding to a question from Sen. Durbin, says his oath is to the Constitution.)

Would it not have a demoralizing effect on Democratic donors if Schumer were to vote for this most high-profile of Bush’s conservative judicial nominees?

As Ralph Neas of the liberal group People for the American Way noted yesterday, the vote on Roberts is “an opportunity to have an issue for the 2006 and 2008 elections.”

Neas added that if Democrats vote for Roberts, “they’d be complicit in being part of an effort to turn back the clock on privacy, on civil rights, on the environment.”

Likewise on the other side of the ledger, it would be politically difficult for a Republican senator to vote “no” on Roberts, especially at a time when Bush needs a morale-boosting win.

• Sept. 15, 2005 | 10:40 a.m. ET

Sen. Russ Feingold, D-Wisc., or his staff have found a personal letter Roberts once wrote (in 1981 or thereabouts) to his old mentor federal Judge Henry J. Friendly in which he complained about the abuse by convicts of the federal writ of habeas corpus to try multiple – and Roberts thought in 1981 redundant – re-hearings of their convictions.

MSNBC coverage: The Roberts Hearings -- Mon., noon ET: Opening remarks begin -- Tues., 9:30 am:  1st round of questioning -- Weds., 9 am:  2nd round of questioning -- Thurs., 9 a.m.: Outside witnesses testify -- Fri., 9:30 am: Questioning, if needed

Feingold complained that young Roberts did not “show the slightest concern about innocent lives possibly being lost.”

“As far as my personal letter to Judge Friendly —I thought it was personal letter,’ Roberts said, slightly annoyed at his past being dredged up from the National Archives.

“As you know, the law has changed dramatically,” Roberts said.  “Congress acted to address the very concerns I was raising there” in the letter to Judge Friendly.

Signed into law by President Clinton, a 1996 law reduced the ability of convicts to file repeated habeas actions.

“These successive petitions had made sort of a game out of the process,’ Roberts told Feingold, referring to “fourth or fifth successive petitions raising issues that could have been raised in the first petition.”

I think the interchange really clarifies the divide between a liberal Democratic view, with Feingold concerned about the possibility of an innocent man being kept in jail or executed, and a conservative Republican view (Roberts) which is more concerned about people abusing or “gaming” the legal system and which is more inclined to emphasize that some guilty people really are guilty and belong in jail.

It’s not so much a question of who’s right in an absolute sense - -ultimately it comes down to the number of votes. Fortunately for Roberts there are 55 Republican senators, not 45 as was the case back when Bush’s father was president.

• Sept. 15, 2005 | 10:10 a.m. ET

Like a decade-long version of Groundhog Day we keep re-living the 1980s.

Sen. Dianne Feinstein, D-Calif., took a trip back in time to the Nicaragua war of the 1980s, asking Roberts whether President Reagan and his aides were acting illegally by funding the anti-communist rebels in Nicaragua in 1985 and 1986.

Roberts said his only role in the White House counsel’s office in that episode was advising that if outside groups raised money to help the contras they had to stay away from lobbying Congress or the executive branch.

But Feinstein wanted to know about the Ollie North efforts to keep the contras going despite Congress cutting off funds to the contras. (He did not mention this but every year Congress kept changing the arcane provisions of the various versions of the Boland Amendment, allowing non-lethal aid in some cases but not in others, etc.)

The North effort “seemed to be inconsistent with the law,” Roberts said blandly – adding that the North effort only came to light after Roberts left the Reagan administration. Good timing, as it now seems with the advantage of 20-years' hindsight.

• Sept. 15, 2005 | 10:00 a.m. ET

Kennedy asked Roberts: What assurance can you give the American people that you might be another Chief Justice Earl Warren?

(I can’t help but feel the Democrats keep hoping in vain for President Bush to appoint a Republican-appearing justice who will turn out to be a crusading liberal once he or she gets on the bench.)

Roberts explained that he had praised Warren for convincing the other justices of the importance of what the court was doing in the landmark school desegregation decision in 1954 – that their decision would have deep impact on real people’s lives.

Judges should never lose sight of the fact that the decisions do affect real people’s lives, Roberts said. No one could argue with that innocuous statement – but he was still unwilling to say “I’ll be another Earl Warren, you can count on me.”

• Sept. 15, 2005 | 9:55 a.m. ET

Sen. Edward Kennedy, D-Mass., asked Roberts about racial discrimination, sex discrimination and discrimination against the disabled.

Kennedy talked about Beverly Lane who won a suit against the state of Tennessee, arguing that although a state is usually immune to suits, in her case Tennessee could be forced to offer accommodations to disabled people under the Americans with Disabilities Act.

Lane herself will be in this room in a few hours as a witness to urge the Senate to reject Roberts.

Four dissenting justices indicated that this kind of disability question ought to be resolved by states, Kennedy told Roberts.

“We have come to the point where we as a country want to invite all these people with disability to be part of the mainstream…. I gather you’re sympathetic” to that point of view, Kennedy told Roberts.

The nominee replied he had no quarrel with access for the disabled – but the precise legal issue is whether Congress has authority under section 5 of 14^th amendment to the Constitution to abrogate state sovereign immunity from lawsuits.

Kennedy brushed aside the constitutional question and prefers to speak in terms of “American values.”

Kennedy accused Roberts of showing “a pattern” over 20 years of writing memos opposing racial preferences – or as Kennedy prefers to phrase them “affirmative action.”

Kennedy criticized Roberts for opposing racial preferences in the Federal Communications Commission awarding TV and radio licenses – a position upheld by the Supreme Court in Adarand v Pena in 1995.

By the way, the Republicans have said they will ask no more questions. But Republicans Jon Kyl, Mike DeWine, John Cornyn, Sam Brownback, and Tom Coburn are here in the Hart 211 hearing room. Coburn, Brownback & Cornyn were sipping coffee and chatting every once in a while as Roberts testified. I assume they’re here to defend him or rebut Democrats’ criticism.

• Sept. 15, 2005 | 9:42 a.m. ET

If the schedule issued by the Judiciary Committee is followed today, this is what you can expect (Senators Leahy and Kennedy have already spoken):

Sen. Feinstein        9:40 to 9:55
Sen. Feingold         9:55 to 10:15
Sen. Schumer         10:15 to 10:30
Sen. Durbin            10:30 to 10:50
Closed Session       11:00 a.m. to 11:30 a.m.

Outside Witnesses
ABA                 11:30 a.m. to 12:00 p.m.
Panel 2            12:00 p.m. to 1:00 p.m.
Lunch              1:00 p.m. to 2:00 p.m.
Panel 3            2:00 p.m. to 3:00 p.m.
Panel 4            3:00 p.m. to 4:00 p.m.
Panel 5            4:00 p.m. to 5:00 p.m.
Panel 6            5:00 p.m. to 6:00 p.m.
(LIVE VIDEO: Click here to watch the hearings in real-time.)

• Sept. 15, 2005 | 9:30 a.m. ET

Leahy portrays the tussle with Roberts over the right to sue as due to negligence by judges and state officials who refuse to do what they have sworn to do in their oaths of office. Then Leahy abruptly ends that line of inquiry.

For the non-lawyer observer the issue seems clear: in looking at any federal statute, either Congress created a right to bring a civil suit for damages – or it didn’t.

And if it didn’t, does a judge have the power to unilaterally create that right to sue – in the absence of a clear congressional statute?

• Sept. 15, 2005 | 9:20 a.m. ET

The third day of interrogation chief justice nominee John Roberts (and fourth day of the hearings) has begun with the chairman’s gavel.

By this point all the reporters, dignitaries, senators and voyeurs are all familiar with each other – it’s like the another day of jury duty or the another day in the life boat. Former senator Fred Thompson (acting as Roberts’s coach/advisor), Federalist Society vice president Leonard Leo, Keith Perrine from Congressional Quarterly, Sen. John Cornyn of Texas, -- we all greet each other and nod – not friends but fellow inmates and familiar faces by now.

A new celebrity is here today: conservative radio hot Dr. James Dobson of Focus on the Family.

Sen. Patrick Leahy, D-Vermont, opens the round, with a question about sex discrimination and the implied right to sue for civil damages someone accused of sexual assault.

Leahy is criticizing Roberts for briefs he wrote in which he said certain federal law did not clearly, explicitly create a right to bring a civil suit.

The fault is Congress’s for not explicitly writing the statute – that’s the gist of Roberts’s argument. (Read Tom's analysis on the hearing: Why the Right backs Roberts and why he'll win)

MORE FROM THE CHANGING COURT

The Changing Court Section Front

On first case, Alito splits with right Alito sworn in as Supreme Court justice Alito lends touch of drama to State of Union Analysis: Why Bush won the Alito fight The Changing Court Section Front   Add The Changing Court headlines to your news reader: