WASHINGTON – Supreme Court nominee John Roberts (search) was told by the Senate Judiciary Committee's Republican chairman Monday that lawmakers are irate about the court's "disrespectful statements about Congress' competence" and by its interference with congressional power.
Sen. Arlen Specter (search), R-Pa., advised Roberts in a letter that he would question the nominee on his thoughts about the court's attitude toward Congress and on two cases in which the court limited Congress' lawmaking ability.
Lawmakers have little control over what the Supreme Court does beyond the setting of the court's budget, the confirmation of new justices and the impeachment of justices and judges for wrongdoing. That leaves Roberts' confirmation hearings as a rare opportunity for court criticism when lawmakers know justices and prospective justices are listening.
Specter called the limiting of Congress' authority "the hallmark agenda of the judicial activism of the Rehnquist Court."
"I do see a great deal of popular and congressional dissatisfaction with the judicial activism; and at the minimum, the Senate's determination to confirm new justices who will respect Congress' constitutional role," Specter said.
Republicans are hoping for smooth hearings followed by a quick confirmation vote on Roberts. Though Specter didn't criticize Roberts specifically, his comments introduced a new element into the discussion.
Democrats pointed to Specter's letter as an indication that they, too, should be able to ask Roberts about specific legal cases at his Sept. 6 confirmation hearing. Roberts' supporters have argued that the high court nominee shouldn't be forced to talk about individual cases and what he thinks about the issues involved.
Said Sen. Charles Schumer (search), D-N.Y.: "Senator Specter's questions aren't exactly identical to the 80-plus that I've asked of Judge Roberts, but the spirit of asking them and the need for a response is the same."
In one case Specter cited, U.S. v. Lopez, the high court in 1995 threw out a federal law that banned possession of a gun within 1,000 feet of a school, saying Congress lacked the authority to enact it. In U.S. v. Morrison, the Supreme Court in 2000 threw out part of the federal Violence Against Women Act, saying rape victims could not sue their attackers in federal court because it was up to the states — not Congress — to give such help to women victimized by violence.
In both cases, Congress said its power to regulate interstate commerce gave it the ability to pass the laws. The court disagreed.
Lawmakers have bristled at those two decisions, which Specter said "overturned almost 60 years of Congress' power under the Commerce Clause."
On another subject, Senate Democrats also are pushing for more of Roberts' documents from his time as a government lawyer, but Attorney General Alberto Gonzales said Monday he would resist a broad release.
The Democrats are pressing for internal memos from Roberts' tenure as a deputy solicitor general, when he represented the White House at the Supreme Court during the administration of President George H.W. Bush. Last week the Justice Department said it would not make public records from 16 cases Roberts was involved in, dealing with issues including abortion, affirmative action, school prayer and capital punishment.
Gonzales defended that decision after addressing the American Bar Association in Chicago. He said Roberts' former position "represents the United States of America, the American people, in front of the U.S. Supreme Court. For that reason I would have very serious concerns about the sharing of information."
He said he was cautiously optimistic "there will be sufficient information" from government records at the Senate hearings which begin next month.
The White House has maintained that the materials are protected by attorney-client privilege, which covers confidential communications between a lawyer and client. Democrats say the memos would give insight into how Roberts would vote on the court, which is closely divided on abortion, the death penalty and other issues.
A national abortion rights group said Monday it plans to start running television ads opposing Roberts and linking him with violent anti-abortion protesters because of the anti-abortion briefs he worked on as a government lawyer.
In 1991, Roberts helped write on behalf of the government a Supreme Court brief in Bray v. Alexandria Women's Health Clinic. The court, in that case, limited the federal help available to abortion clinic owners who seek to stop blockades by protesters.
NARAL Pro-Choice America says it is putting up about $500,000 in broadcast television ads in Maine and Rhode Island and on national cable television networks opposing Roberts. The ads are to start Wednesday and run about two weeks, officials said.
Using Emily Lyons, who was injured in Eric Rudolph's bombing of an Alabama abortion clinic, the ad calls for Roberts' defeat in Congress.