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Stephen Crowley/The New York Times
Judge John
G. Roberts Jr. on the second day of his hearing in the old Senate
Caucus Room. He quickly drew a line against answering questions that
he said could come before the court.
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Roberts Fields
Questions on Privacy and Precedents
By SHERYL GAY
STOLBERG and ADAM LIPTAK, NYTimes on the Web, September 14, 2005
WASHINGTON, Sept. 13 - In a
day punctuated by flashes of hostility and humor, Judge John G. Roberts Jr. on
Tuesday acknowledged a constitutional right to privacy and said overturning
precedent was a "jolt to the legal system."
But he artfully sidestepped the contentious question that has dogged him as a
Supreme Court nominee, whether he opposes Roe v. Wade, the 1973 decision that
established a constitutional right to abortion. [Excerpts, Page A26.]
Roe became an issue minutes after the start of the second day of the first
Supreme Court confirmation hearing in 11 years and one in which Judge Roberts,
President Bush's nominee to be the nation's 17th chief justice, was also
questioned on his views on civil rights, gender discrimination, presidential
authority and the proper role of judges.
Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate
Judiciary Committee, asked Judge Roberts a series of questions intended to draw
him out on whether he believes the right to abortion is so embedded in the
fabric of American life that it must not be overturned.
The nominee wasted little time in drawing the line against answering questions
that, he said, could come before the court. Four minutes into the hearing, he
told Mr. Specter, "I feel the need to stay away from a discussion of particular
cases."
He reiterated that phrase in one form or another throughout the day on subjects
as varied as the right to die and the treatment of foreign detainees.
Democrats kept a tally of the number of questions they said Judge Roberts
refused to answer, putting the number at 60.
Judge Roberts told the senators that he did not have a specific legal
philosophy, and he resisted comparisons to William H. Rehnquist, the late chief
justice for whom he once clerked, telling senators that he would be "my own
man."
He also flatly rejected the idea that his Roman Catholic religion played a role
in his court decisions, saying: "I look to the law books and always have. I
don't look to the Bible or any other religious source."
The session, which began at 9:30 a.m. and continued until nearly 8 p.m., was the
panel's first unscripted public exchange with Judge Roberts.
It offered Senate Democrats, who have complained bitterly that they know too
little about the nominee's personal views, their first chance to question Judge
Roberts on his judicial philosophy and legal record.
Drawing on thousands of documents from the nominee's days as a young lawyer with
the Reagan administration, the Democrats peppered Judge Roberts with questions
on presidential authority, civil rights and gender discrimination.
Perhaps the sharpest clash involved memorandums that Judge Roberts wrote in the
early 1980's that argued that the Reagan administration was correct in opposing
new provisions in a law that extended the Voting Rights Act of 1965. The bill,
which passed the House with an overwhelming majority, made it easier to prove
voting rights violations.
"I'm deeply troubled by a narrow and cramped and, perhaps, even a mean-spirited
view of the law that appears in some of your writings," Senator Edward M.
Kennedy, the Massachusetts Democrat who was a chief architect of the extension,
said.
In a terse back and forth, Judge Roberts said he supported the Voting Rights
Act, noting that the Supreme Court had previously agreed with the Reagan
administration,
Later, when Senator Russell D. Feingold, Democrat of Wisconsin, pressed the
issue again, the nominee could barely contain his exasperation. "Senator," Judge
Roberts, 50 years old, said, "you keep referring to what I supported and what I
wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer,
after my clerkships. I was not shaping administration policy."
There were similar exchanges throughout the day. In one, Senator Dianne
Feinstein, Democrat of California, pressed Judge Roberts about his writings on
women's rights, saying, "You speak about modesty and humility, and yet none of
these comments are modest or humble."
At another point, Senator Joseph R. Biden Jr., Democrat of Delaware, accused
Judge Roberts of being misleading in answering a question about equal treatment
for female prisoners, an accusation the judge firmly denied. Mr. Biden
repeatedly cut off Judge Roberts, prompting Mr. Specter to interject and
instruct his Democratic colleague to let the nominee speak.
"He's filibustering, Senator," Mr. Biden said. Then, to Judge Roberts, he said:
"Go ahead. Go ahead and continue not to answer."
There were light moments, as well, as when Senator Charles E. Grassley,
Republican of Iowa, read Judge Roberts a lengthy quotation from Benjamin N.
Cardozo, the Supreme Court justice in the 1930's, in which the justice said, "A
judge, even when he is free, is still not wholly free."
Mr. Grassley asked what the passage meant and whether he agreed with it.
"I know I agree with it," Judge Roberts responded. "Now let me figure out what
he meant by it."
Another humorous moment occurred when Judge Roberts was asked about a 1983
memorandum in which he advocated term limits for judges.
"You know," he said, "that would be one of those memos that I no longer agree
with."
Despite his often-stated reluctance to discuss particular Supreme Court cases,
Judge Roberts did not avoid them entirely. He said he agreed with the ruling in
Brown v. Board of Education, the 1954 case that declared racial segregation in
public schools unconstitutional.
He allowed himself an answer, albeit a careful one, when Senator Patrick J.
Leahy of Vermont, the senior Democrat on the panel, asked about the 1944 case,
Korematsu v. United States, in which the Supreme Court upheld the right of the
federal government to place people of Japanese ancestry in internment camps.
Mr. Leahy, saying he wanted to assure himself that Judge Roberts would not "be a
Korematsu justice," asked the nominee whether he would consider such internment
unconstitutional.
"I suppose a case like that could come before the court," Judge Roberts replied.
"I would be surprised to see it. And I would be surprised if there were any
arguments that could support it."
The day began with a bang, when Mr. Specter, whose support for abortion rights
is well known, delved straight into that topic, pressing Judge Roberts on
questions of precedent and the legal principle of stare decisis, a Latin term
that means "to stand by things decided."
Mr. Specter quickly introduced the only prop of the day, a large chart that, he
said, demonstrated that the Supreme Court had the opportunity to overrule Roe v.
Wade on 38 occasions and had not done so.
He reminded the nominee of a remark that Judge Roberts made in 2003, when the
Senate was considering him for the seat he has on the United States Court of
Appeals for the District of Columbia Circuit, in which he said Roe was "settled
law."
"Do you mean settled for you?" Mr. Specter asked. "Settled only for your
capacity as a circuit judge? Or settled beyond that?"
"Well, beyond that," Judge Roberts replied. "It's settled as a precedent of the
court, entitled to respect under principles of stare decisis."
Conservatives and liberals said the line of questioning was smart strategy on
Mr. Specter's part.
"I think it takes some of the wind out of the Democrats' sails later," said
Leonard Leo, who is on leave from a position at the Federalist Society, a
conservative legal group, to coordinate support for Judge Roberts.
Some of the most freewheeling exchanges involved Mr. Biden, a potential
presidential candidate, who elicited from the nominee that there is a right to
privacy to be found in the liberty clause of the 14th Amendment and that the
right extends to women.
The comment was important, because the right to privacy provided a part of the
philosophical underpinning for Roe v. Wade.
But Judge Roberts was careful as he made the remark, telling the senators that
all the current Supreme Court justices would agree that there was a right to
privacy "to some extent or another."
Judge Roberts parted company with some of the justices he will join, if he is
confirmed, by expressing reservations about the Supreme Court's recent use of
foreign judicial decisions in cases that involved constitutional questions.
In cases in the last few years involving the death penalty and gay rights,
several justices have looked to decisions from courts abroad to help justify the
rulings.
"The trend," Senator Jon Kyl, Republican of Arizona, said, "if it is to become
one, is greatly troubling to me and to many of my colleagues."
Judge Roberts seemed to agree, citing two concerns. "The first," he said, "has
to do with democratic theory."
Because foreign judges are not chosen by the elected representatives of the
American people, he said, those judges are not accountable to them.
Moreover, he added, foreign decisions do not confine or constrain American
judges.
"Looking at foreign law for support," Judge Roberts said, "is like looking out
over a crowd and picking out your friends. You can find them. They're there. And
that actually expands the discretion of the judge."
Judge Roberts's position on that point aligns him with Justice Antonin Scalia,
who has been harshly dismissive of taking account of international precedents,
and against Justices Anthony M. Kennedy and Stephen G. Breyer.
In the afternoon, Senator Lindsey Graham, Republican of South Carolina, asked
Judge Roberts how he hoped historians would remember him.
"I'd like them to start by saying," Judge Roberts said, " 'He was confirmed.' "
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