Published September 15, 2005
Senate Judiciary Committee panelists said they didn't expect Supreme Court nominee John Roberts (search) to comment on Wednesday's federal judge's opinion declaring the recitation of the Pledge of Allegiance unconstitutional, but that didn't stop them from excoriating it.
Sen. Lindsey Graham (search), R-S.C., said the judge's ruling that reciting the pledge in public schools violates the Establishment clause "is an example, in my opinion, where judges do not protect us … but declare war on all things religious," Graham said.
"That's why most Americans sometimes are dumbfounded about what's going on in the name of religion," Graham added.
Graham was one of several Republican senators who spoke against the decision by U.S. District Judge Lawrence Karlton, who ruled he was bound by a previous decision made by the 9th Circuit Court of Appeals, which declared the Pledge unconstitutional because it includes the words "under God" in it and, therefore, endorses religion.
If confirmed to be the 17th chief justice of the Supreme Court, Roberts is more than likely to be asked to look at the case. Staying consistent with his responses when asked about other issues headed for the high court, Roberts had no intention of speaking about specifics of the matter.
That attitude irked several Democrats, including Sen. Charles Schumer (search) of New York, who blasted Roberts for not giving details of his views on several political and social issues.
"Why this room should be some kind of cone of silence is beyond me," Schumer said. "It seems to me this is something of an argument of convenience. Senator Specter said it well, you can answer as many questions as you can to get confirmed … that's not the right thing to do."
But Republican Sen. John Cornyn (search), R-Texas, was quick to defend Roberts when he followed Schumer's questioning.
Roberts had answered "66 questions on the role of judges and judicial philosophy, 48 on civil rights and discrimination, 44 on abortion and privacy. Let me ask you this, if we keep asking the same question over and over and over again, but try to approach it from a slightly different way to get you to answer a question you don't feel you can ethically answer, are you going to give us a different answer or are you going to give us the same answer?" Cornyn asked.
"I hope my answer would be the same, Senator," Roberts responded. Prior to that, the nominee told Schumer that he had read the transcripts of every recent Supreme Court nominee's confirmation hearings before him and not only is he following their precedent but he had answered more questions than anyone else.
"I think I have been more forthcoming than any of the other nominees," Roberts said in response to Schumer's criticism.
The previous Supreme Court nominees "took a very strict approach. I have taken what I think is a very more pragmatic approach and said, 'If I don't think that's likely to come before the court, I will comment on it,'" Roberts said. "And, again, perhaps that is subject to criticism because it is difficult to draw the line sometimes, but I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach."
Roberts Defends Past Clients, Writings
Roberts did defend his record to Sen. Dick Durbin (search), D-Ill., who questioned why Roberts took a case that challenged an Illinois state law that required an HMO to pay for surgery deemed medically necessary by an independent arbiter. Roberts lost the case in the Supreme Court, 5-4, thankfully, Durbin said, because "it would have put millions of American consumers and families at risk of losing coverage for necessary health care."
Durbin also asked Roberts to defend a memo he wrote for the Reagan administration 23 years ago that criticized the solicitor general's office for failing to support the state of Texas in its legislature's decision to prohibit elementary school-age children of illegal immigrants from attending public schools. The Supreme Court struck down the state's decision in a 5-4 ruling.
Roberts said he did not take the HMO case nor did he write the Reagan administration memo based on whether he thought the cases were good ideas, but on whether the cases had legal merits.
"The lawyers aren't judges, the judges are," said Roberts in defending his memos and choice of clients. Roberts argued that he has represented plenty of clients who would likely be more preferable to Durbin.
"I am sure there are clients that I have represented in court that I am sure you would agree with. You would say that's the right side of the cause to be on, whether it's the environmental interests I represented in the Tahoe case, whether it's the welfare recipients I represented pro bono ... whether it's the cause of the inmate on death row that I insisted in Florida ... I am sure I could go down my list of clients and find clients that you would say that's the right side, that's the cause of justice and there are others with whom you disagree," he said.
"My point is simply this: that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client," he said.
After the exchange between Durbin and Roberts, Sen. Tom Coburn, R-Okla., said that the fact Roberts could articulate valid legal arguments even in unpopular cases should be a credit to him. He added that he doesn't appreciate suggestions that Roberts' record reveals him to be unkind or unsupportive of equal rights or against fair treatment of employees or immigrants.
"That record doesn't hold up to the smell test that has been presented here today and it's a little bit disturbing to me because it's this subtle way of trying to say you are not who you really are," Coburn said.
Earlier in the day, Coburn gently nudged Roberts on the issue of abortion (search) when he asked if the nominee agreed that death is defined by not having brainwaves or a heartbeat. Therefore, Coburn said, "the presence of them certainly designates life and to say it otherwise, logically, is schizophrenic."
Although he didn't press Roberts for an answer — Roberts would not respond to questions regarding the legal status of the unborn — Coburn pointed out that medical studies show that by 41 days of conception, a fetus has a heartbeat and brainwaves.
"So many decisions of the Supreme Court have been made in the vacuum as to when life begins … and it belies the scientific facts, the medical facts, that are out there today," Coburn said.
Support for Congress' Legislative Discretion
At the beginning of the third day of hearings, the nominee also spoke to a recent Supreme Court ruling, saying that Congress has the authority to counter the decision that allowed cities the right to seize private property for commercial use, He vowed to follow the law, not his personal beliefs, on issues such as right-to-die cases.
"This body and legislative bodies in the states are protectors of the people's rights," Roberts said. "Legislators have the right to protect the rights of the people as much as courts."
Lawmakers from both sides of the aisle were up in arms earlier this year when a sharply divided Supreme Court ruled on what's known as "eminent domain" (search) in the case of Kelo v. City of New London, Conn.
That ruling said cities can seize private land and homes in order to build shopping malls, convention centers or other structures to generate tax revenue. The decision drew a scathing dissent from Justice Sandra Day O'Connor (search) as favoring rich corporations, and Republican lawmakers have blasted it, saying it infringes on individual ownership rights.
Many Americans are now concerned that it has become "much easier for one man's home to become another man's castle," noted Sen. Sam Brownback, R-Kan.
Congress has been working on legislation that would ban the use of federal funds for any project based on the Kelo decision. Roberts said that was an "appropriate approach."
"What the court is saying is there is this power," he added. "That leaves the ball in the court of the legislature."
Committee Chairman Arlen Specter (search), R-Pa., also tried to ask Roberts about issues relating to interstate commerce and United States v. Morrison, the 1999 Supreme Court decision that struck down the civil remedies provision of the 1994 Violence Against Women Act. That act authorizes the victims of gender-motivated violence to sue their aggressors for damages in federal court.
While Roberts, 50, said issues relating to that case may come up before the court, Specter said: "We're going to have to agree to disagree on that."
If confirmed, Roberts would succeed his mentor William H. Rehnquist (search), who died from cancer on Sept. 3 at age 80. He would become the youngest chief justice in 200 years.
Biden: 'We're Rolling the Dice With You'
Despite understanding from Republicans about Roberts' refusal to respond to some questions, Delaware's Democratic senator expressed frustration with the nominee's intransigence.
"You are one of the best witnesses, I think, that has come before this committee. You've convinced folks who share Senator Brownback's view that you're going to be just right for them and you've convinced folks that share Senator Kennedy's view that you're just right for them," Sen. Joe Biden told Roberts.
But Biden questioned how the nominee has convinced everyone so well when he won't share more on his personal views on issues such as whether a competent individual can decide whether to end his or her own life.
Biden at one point said to Roberts: "Just talk to me as a father … not what the Constitution says. What do you feel?"
Roberts replied to such questions generally saying privacy is protected by the Constitution and that liberty is not limited to freedom from physical restraint.
"We are rolling the dice with you, judge," Biden said. "The American public is going to face the decision whether patents can be issued for the creation of human life. You're going to be faced with whether there is a right to refuse heroic medical efforts that you don't want as an individual and you're fully capable, mentally, of making that decision.
"It's kind of interesting, this kabuki dance we do in these hearings here. As if the public doesn't have a right to know what you think about fundamental issues facing them," he added.
Republicans warned Roberts to avoid those traps.
"There's just no excuse for being pushed to answer questions that may come before the court or are before the court and I think the American people are starting to realize that in these hearings," said Sen. Orrin Hatch, R-Utah.
All the issues Biden asked about have come before, or will come before, the court.
"I'm not standing for election and it is contrary to the role of judges in our society to say that this judge should go on the bench because this is his or her position and those are the positions they're going to apply," Roberts said.
A judge decides based on evidence and judicial process, Roberts said, not on "promises made to get elected nor on promises made to get confirmed."
Sen. Dianne Feinstein, D-Calif., also tried to get out of Roberts how he, as a person, would react if the government told him whether a loved one should die or be kept alive.
"You do want to understand and appreciate the views of the loved ones," Roberts responded.
Getting to Know Roberts 'The Man'
Sen. Mike DeWine, R-Ohio, who said he has no doubt Roberts would be confirmed, urged the nominee to hold on to his morals, compassion and good judgment.
"President Bush has nominated John Roberts the man, and America has got to know John Roberts the man, and I'm quite sure the United States Senate is going to confirm John Roberts the man," DeWine said. "Please don't check any of that at the door when you walk into the United States Supreme Court."
Feinstein, the only woman on the committee, said that while she agreed with DeWine, she was concerned she didn't know enough about Roberts "the man," particularly on issues such as abortion and affirmation of Roe v. Wade (search).
"I don't expect you to say what you'd do with Roe one way or the other but I do expect to know a little bit more about how you feel and what you know as a man … you could be chief justice for 40 years. That's a very long time," said the California Democrat. Only in the last 33 years have women "come really to feel that finally they have some autonomy over their body."
She also questioned whether Roberts can bring the court together in a time when America is so politically split over cases coming before the court.
"Because of the division, there's also a lot of fear out there where this new court, with potentially two new justices, where it's going to go," she said. "[I want to know] whether you've got that ability to bring that court together ... to see that big decisions are made so they represent a much greater consensus."
On the issue of religion and the diplay of the Ten Commandments on public property, Roberts noted that only one justice agrees with both recent court rulings on the issue.
The court ruled earlier this year that a granite replica of the commandments on the Texas state capital grounds did not violate the Establishment clause. But framed copies of the commandments in two Kentucky courthouses were found by five justices to be the equivalent of governmental endorsement of religion.
"That is an area, I think, the court can redouble its efforts to come to some consistency in its approach," Roberts said.
Roberts has smoothly battled some senators who tried to determine his opinions on hot-button topics.
"I tend to take a more practical and pragmatic approach to things, rather than a theoretical or ideological approach," Roberts said. "My views on the cases that I think are not likely to come before the court, I'm perfectly willing to discuss."
Some Democratic lawmakers have complaining that Roberts was stonewalling but Judiciary Committee member Charles Grassley told FOX News on Wednesday that Roberts has done "very well."
"He did what a judge should do — not give any indication on any specific case or how he might look at that because if he does, he's not going to be the impartial arbiter a judge should be," the Iowa Republican said. Instead, Roberts said he would have a "gentle approach to the law" and shed light on his judicial temperament, Grassley noted.
Sen. John Corzine, D-N.J., told FOX News on Wednesday that the White House needs to release Roberts' writings from his time in the solicitor general's office during the administration of George H.W. Bush. The White House has released about 70,000 documents relating to Roberts' time in the Reagan administration.
"It won't happen," Grassley said. "Don't forget, we ought to get a very good idea of how he approaches the law by the 50,000 to 60,000-some pages that have already been released. I don't know how you're going to get anything different from a few pages protected by attorney-client relationship."
Roberts also had to continually remind lawmakers that any writings done during his time as a young lawyer in the Reagan administration more than 20 years ago were the opinions of the administration, not necessarily his own.
Questions About Secret Courts, Civil Rights, Privacy
Roberts also said:
— Legal precedent set in the 1973 Roe v. Wade ruling, which said U.S. states could not ban abortions, was a "very important consideration"
— "No one is above the law," including the president
— "Everybody should be treated with dignity" in terms of treatment in the workplace, but the legal question of Congress' authority to address discrimination against gay employees could come before the courts
— The chief justice has "a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution"
— He would take seriously any appointments to the secret court in charge of overseeing the collection of foreign intelligence under the Foreign Intelligence Surveillance Act (search)
"I think the people who are selected for that tribunal have to be above reproach," he said. "There can't be any question these are among the best judges our system has."
— Attempts to politicize the courts will have a chilling effect
— He would make "every effort" to make sure he doesn't become an activist judge
— He believes the separation of power is "very protective of our individual liberty"
— The Constitution gives Congress the power to declare war
— His Catholic faith and religious beliefs do not play a role in his juridical decision-making
— The 1992 Supreme Court ruling in Casey v. Planned Parenthood, which reaffirmed Roe v. Wade, should be respected
— The right to privacy is protected under the Constitution
— 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
— The court should have a limited role to interpret the law and not make policy
— He supports extension of the Voting Rights Act of 1965
— He opposes the use of foreign law in rendering U.S. court decisions, but rejected the notion that judges who do so are violating their oaths
— He is a strong supporter of women's rights.
The Associated Press contributed to this report.