Roberts Picks and Chooses Questions to Answer

Published September 14, 2005

| FoxNews.com

Supreme Court chief justice nominee John Roberts (search) on Tuesday battled a number of senators who tried to determine his opinions on hot-button topics like abortion and end-of-life issues.

But he stood his ground, maintaining that he stands by precedent already set and that he could not answer questions about issues that are or will be before the court.

Late Tuesday evening, Roberts did answer personal questions, telling Sen. Lindsey Graham (search), R-S.C., that he didn't like depictions of himself in some political advertisements, and those advertisements had been upsetting to his family. But he said he was used to repeating the phrase, "It's a free country and it's a good thing that it is."

Asked what he'd like history to say about him, Roberts replied, "I'd like them to start by saying he was confirmed." After the laughter subsided, he added, "I would like them to say I was a good judge."

Outside the hearing room, some Democratic lawmakers were overheard complaining that Roberts was stonewalling on some of his answers. In his defense, Roberts said he was more than willing to answer questions regarding the importance of abiding by prior court rulings, but he would not get into detail about the application of those rulings to potential future cases.

"I tend to take a more practical and pragmatic approach to things, rather than a theoretical or ideological approach," Roberts said. "But I do think when it gets into an area where the correctness or incorrectness or my agreement or disagreement with a particular precedent is in an area that is likely to come before the court or could well come before the court, I do have to draw the line there. ... My views on the cases that I think are not likely to come before the court, I'm perfectly willing to discuss."

According to a count by Sen. John Cornyn (search), R-Texas, Roberts had been more than responsive.

"I know before we had the last two rounds of questions, you'd answered 35 questions on civil rights, 10 on following precedents. You answered 40 questions about the role of a judge, 25 on abortion and privacy rights, and 11 on presidential powers," he said.

"So I would just disagree with the characterization that someone might make — I don't think it's fair or accurate — that you've been anything less than completely forthcoming, and that we frankly know an awful lot about you, and that's not been a bad thing," Cornyn added.

A Hush Over Battleground Cases

Earlier in the day, the man nominated by President Bush to be the nation's 17th chief justice declined to give his opinion on the landmark 1973 Roe v. Wade (search) ruling, which said U.S. states could not ban abortions. Roberts did say, however, that legal precedent already set by the court is a "very important consideration."

"I think it is a jolt to the legal system when you overturn precedent. ... It is not enough that you may think that a prior decision was wrongly decided," Roberts said during the first round of questioning by Senate Judiciary Committee Chairman Arlen Specter (search), R-Pa.

Roberts also battled with lawmakers like Sen. Joseph Biden (search), D-Del., over what types of questions he should or should not be answering.

"This shouldn't be a game of 'gotcha,' you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life," Biden said.

But Republicans warned Roberts to avoid traps Democrats may set in trying to play that game.

"[Some interest groups and Senate Democrats] would like nothing more than for you to take a litmus test," Sen. Orrin Hatch, R-Utah, said. "I agree that this committee needs answers but only to proper questions. … You are not campaigning for elective office. The question that needs to be answered is how you view the role of unelected judges in a representative democracy."

Roberts repeatedly defended himself throughout the day for his decision over which questions to answer. "I should not, based on the precedent of prior nominees, agree or disagree with particular decisions and I'm reluctant to do that," Roberts said in response to one question about abortion. "That's one of the areas, I think, prior nominees have drawn the line."

As of 1992, when the Supreme Court ruled in Casey v. Planned Parenthood (search), the high court has emphasized the principles that have been settled for years.

"It's entitled to respect under those principles," Roberts said.

He did say, however, that the right to privacy is protected under the Constitution "in various ways," including the First, Third and Fourth Amendments. And the court has decided "personal privacy is a component of the liberty protected by the due process law," Roberts added.

Roberts also said he agreed with the 1965 Supreme Court ruling in Griswold v. Connecticut that established the right of privacy on the sale and use of contraceptives.

Asked by Sen. Dianne Feinstein (search), D-Calif., whether the court should get involved in end-of-life decisions, Roberts had a similar answer: "Senator, that is exactly one of the questions before the court, I can't answer that in the abstract."

He did, however, say he believes the court should have a limited role, in general, "and that is that they only interpret the law … they don't make policy."

On another subject, Roberts also declined to talk about voluntary school prayer, saying that a case involving prayer could come before the court.

While acknowledging that Roberts hit a home run before the panel and American people on Monday, particularly when he said that his role as a justice would be to call strikes and balls, not to pitch and bat, Biden tried to poke holes in Roberts' metaphor.

"In Major League Baseball, they have a rule: Rule Two, which defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges is: Do they have good eyesight or not? They don't get to change the strike zone. … As much as I respect your metaphor, it's not very apt because you get to determine the strike zone [on some issues]," he said.

Questions About Torture, Judicial Activism

In response to questions from the committee's ranking Democrat, Sen. Patrick Leahy (search), D-Vt., Roberts said he believes "very strongly in the separation of power … that is very protective of our individual liberty."

Leahy also questioned the nominee on the so-called "Bybee memo," (search) a 2002 Justice Department memo that Democrats say led to torture in foreign prisons. While Roberts did not write the memo, Leahy asked him if he believes the president has authority to override current law prohibiting torture in certain instances.

"Senator, I believe that no one is above the law in our system, and that includes our president," Roberts replied, adding that it is often the court's job to decide conflict between the legislative and executive branches on this issue.

Roberts also said the Constitution specifically gives Congress the power to declare war and vowed to take seriously any appointments to the secret FISA court. That court is in charge of overseeing the collection of foreign intelligence under the Foreign Intelligence Surveillance Act in order to protect against terrorism, espionage, racketeering and drug trafficking among other crimes against the nation.

Although he said he himself was "surprised" at the duties of the court, Roberts said, "If I am confirmed, that is something I would address and take very seriously."

"This is a very different and unusual institution ... I appreciate the reason it operates the way it does," he continued. "I think the people who are selected for that tribunal have to be above reproach. There can't be any question these are among the best judges our system has."

Republicans were posing tough questions of their own to the 50-year-old appeals court judge and former Reagan administration lawyer who has been picked to succeed the late Chief Justice William Rehnquist (search).

Hatch and Sen. Charles Grassley, R-Iowa, grilled Roberts as to whether he would be a judge who made the law, rather than interpreted it. Republican lawmakers have decried recent decisions on quality of life issues and gay marriage, saying so-called "activist judges" have created rights not explicitly outlined in the Constitution.

Roberts said he would make "every effort" to make sure he doesn't cross the line into judicial activism.

"I appreciate the point, in some cases — the question whether you're interpreting the law or making the law — that line is hard to draw in some cases," Roberts said, adding that in "most cases" judges "can recognize when they're going too far."

Much of the late questioning by Sen. Charles Schumer, D-N.Y., was centered on decisions relating to the commerce clause in the Constitution, which gives Congress the power to regulate local activities if Congress finds those activities "exert a substantial economic effect on interstate commerce."

Schumer listed three rulings that act as pillars underlying support for the commerce clause and which have been used for decades to defend civil rights. Schumer, who was expected to be the most virulent questioner of the day but actually appeared mild in demeanor and preoccupied by the substance of the cases, questioned why Roberts would support two of those pillars, but not the third.

Roberts explained that the tenet of the third case, Wickard v. Filburn, had recently been directly challenged in a court case and was likely to be put before the court again. He did not therefore want to comment on whether it was good law or not even though he had previously spoken freely in favor of the other two precedents. While slightly frustrated, Schumer said he disagreed with Roberts' logic.

Earlier in the day, Sen. Edward M. Kennedy (search), D-Mass., pressed Roberts about his writings on civil rights while a lawyer in the Reagan administration two decades ago. Kennedy described some of those writings on voting rights as a "narrow, cramped and mean-spirited view" that failed to show a full appreciation of discrimination.

Roberts declined to discuss specific cases that might come before the court but called voting rights "the most precious rights we have as Americans."

Kennedy continued to interrupt Roberts and was told by Specter to allow the nominee to finish his answers. After Roberts said Kennedy was not accurately representing his position in some of the writings, the nominee did say he supported an extension of the Voting Rights Act of 1965.

"The constitutionality has been upheld, and I don't have any issue with that," he said.

On the the use of the death penalty against minors, the Supreme Court this year noted the standards and rules of other nations. But Roberts said that sort of citation expands the discretion of a jurist, and "that's a misuse of precedent, not a correct use of precedent."

Roberts, who is Catholic, also said his faith and religious beliefs do not play a role in his juridical decision-making.

Be Careful What You Answer

Republicans like to point out that Justice Ruth Bader Ginsburg (search) refused to answer some 60 questions during her own confirmation hearings on the basis that in doing so, she would be giving clues as to how she may rule in certain cases. Refusing to answer such questions has therefore been dubbed the "Ginsburg Rule." (search)

Biden blasted the nominee for not answering a question as to whether a state passing a law prohibiting abortion would be unconstitutional, arguing that Ginsburg did answer that question when she said: "Abortion prohibition by a state controls women and denies them full autonomy and full quality of men, it would be unconstitutional."

But Roberts noted that Ginsburg had written extensively on that topic prior to her confirmation hearings and that her views were already known.

"I think it's important to adhere to that ... if these questions come before me, either on the court on which I know sit or if I am confirmed on the Supreme Court," Roberts said. "I need to decide those questions with an open mind on the basis of the arguments presented ... and the precedence of the court."

Biden retorted that Ginsburg defied her own rule of "no hints, no forecasts, no previews" by commenting explicitly on 27 specific cases.

"Go ahead and continue not to answer," Biden said at one point.

During a break in the hearing, former Sen. Fred Thompson, who is acting as the White House liaison for Roberts on Capitol Hill, said Biden shouldn't expect Roberts to answer questions relating to cases that are likely to come before the Supreme Court.

"Senator Biden told Justice Ginsburg when she was up there that she should not answer questions that she thought might compromise her in that way. So the shoe is on the other foot now. That's a part of the process; we're going through it. But all is well," Thompson said.

"The nation's seeing a person that I think they're going to be very, very happy to see that we have got this kind of man or woman, this kind of person who is still willing to serve this country in this capacity. He's going to be an excellent chief justice of the United States," he added.

Conservatives v. Liberals

Responding to a question from Graham, Roberts said that the attempt to politicize the courts will have a chilling effect.

"I have been fortunate for the past two years to serve on a court in which all of the judges ... put aside those (political) ties and those views and become judges all focused on the same mission of vindicating the rule of law. And if you look at the decisions of the D.C. Circuit, you'll see that we're almost always unanimous. We almost always come out the same way and to the extent there are disagreements, they don't shape up along political lines," Roberts said.

"That is an ideal. But the more and more the process becomes politicized, the less and less that's going to happen," he added.

Graham said that if the general counsel to the ACLU had applied for a job in the Reagan administration, she would have had a harder time getting the job than someone from an organization with a less liberal reputation. Nonetheless, Graham said Ginsburg, who formerly held that post at the ACLU, was a "very nice lady, extremely qualified ... a great lawyer," though one with whom he disagrees on almost anything. She also received 96 votes during her confirmation.

Asked if Roberts considered himself more conservative than Justice Antonin Scalia, believed to be the Supreme Court justice farthest on the right of the spectrum. Scalia earned 98 votes during his confirmation. Roberts declined to position himself in relation to Scalia, leading Graham to reply that he thinks Roberts is conservative, but also "one of the great minds of our generation, of our time."

He then made the point that "time will tell" whether Democrats are willing to overlook their judicial philosophies in order to vote for such a qualified candidate for the court.

Many observers of all political stripes agree that senators will use their questioning time for their own grandstanding.

The New York Times reported Tuesday that Schumer held a mock hearing in his office on Sunday, with a Harvard law professor playing the part of Roberts.

As chairman of the committee charged with electing Democrats to the Senate in 2006, the Times reported that Schumer has used the confirmation battle to raise money for campaigns and to strengthen his standing as a party leader.

"It's the United States Senate. I'm sure some will try to use it as a platform," Jack Quinn, former White House counsel to President Clinton, told FOX News. But, "I do think there are a good many questions of that kind that need to be explored thoroughly with this man," he added.

The Associated Press contributed to this report.

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