Published September 16, 2005
Frustrated by the lack of personal views on hot-button topics like abortion, privacy and end-of-life decisions, Democratic senators on the Senate Judiciary Committee took one more chance Thursday to try to coax answers out of Supreme Court nominee John Roberts. (search)
While at least two acknowledged that they're still not sure how they will vote, the nominee assured them that he's no ideologue.
"I don't really know what I'm going to do with respect to voting for you or voting against you," Sen. Dianne Feinstein (search), D-Calif., said Thursday. "I had one impression of you when I had our meeting in private. To one extent, I think I came out of that meeting with a greater sense of you. The impression I have of you today is this very cautious, very precise man.
"You're young, but obviously with staying power. I'm convinced that you'll be there for 40 years. ... That concerns me even more. It means my vote means more ... what kind of a justice will you be, Judge Roberts?"
Sen. Chuck Schumer (search), D-N.Y., said, "some of us, more than others," have been wrestling with whether to give Roberts an up or down vote.
"I for one have woken up in the middle of the night thinking about it, wondering how I should vote," Schumer said. "This is a vote over the chief justice of the Supreme Court ... this isn't just rolling the dice, it's betting the whole house."
Schumer was referencing comments made the day before by Sen. Joe Biden (search), D-Del., when he said, "We are rolling the dice with you, judge," since many Democrats say they haven't learned enough about Roberts to know whether he will be a good chief justice. Roberts responsed to that by saying a judge decides based on evidence and judicial process, not on "promises made to get elected nor on promises made to get confirmed."
Feinstein voted to confirm Roberts for the U.S. Court of Appeals for the District of Columbia Circuit, Schumer voted against him.
Roberts has repeatedly vowed to follow the law, not his personal beliefs, on cases.
"My reaction has been, I set those personal views aside and don't consider them. Other nominees might take a different approach," Roberts said Thursday. "I think the committee has been very effective over the last several days in terms of learning about me."
After finishing with Roberts, senators went into a closed-door meeting to review his FBI background check; they said they found nothing awry.
Lawmakers then heard from outside critics and supporters. The American Bar Association testified about the unanimous "well-qualified" rating it gave Roberts last month.
The committee is to vote on his nomination next week, and the White House hopes the full Senate will vote in time for Roberts to be on the bench by Oct. 3. The court is expected to take up the Bush administration's challenge to Oregon's assisted suicide law. Justices also will review a parental notification abortion law, several death penalty appeals, a case involving disability rights and an appeal that touches on gay rights.
"He's not going to have a grace period. He will find himself right smack in the middle of it," said Stephen Wermiel, an American University law professor.
"I don't think he's locked himself into any positions. He could go anywhere. He could be another (Justice David) Souter," said Ann Althouse, a law professor at the University of Wisconsin, referring to the liberal justice named to the court by President Bush's father. "We really don't know."
Sen. Orrin Hatch (search), R-Utah, told FOX News that there are murmurings that the Judiciary Committee vote for Roberts will be 10-8 with all committee Democrats opposing the nominee.
"If they want to vote against him, you know darn well they're captives of these ... very liberal outside groups … and they're demanding they vote against him even though they don't have one good reason to," Hatch told FOX News. "I really don't believe that's the case but if that happens, then you can see why we're in such a partisan gridlock here in Washington, because the Democrats can't even support someone this good."
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.
Roberts: I'm No Hired Gun
Roberts said Thursday that Congress has the authority to pass laws barring discrimination based on race, gender and disability.
In response to questions from Sen. Edward Kennedy (search), D-Mass., about whether he could ensure the rights of the nation's less fortunate, Roberts noted that he had argued cases in favor and against affirmative action and noted that he participated in a program to assist minority students considering law school.
"Yes, I was in an administration that was opposed to quotas," Roberts told Kennedy. "Opposition to quotas is not the same thing as opposition to affirmative action."
He once again defended his record to Sen. Richard Durbin (search), D-Ill., as the senator tried to get Roberts to say why he would represent certain clients if the client's morals and values may be different than his own. Roberts has argued that he represents clients on both sides of controversial issues, so long as they have legal merit.
"All of us are trying to get down to, what are your core values?" Durbin asked. "If you'll play for any team that asks you to play, it raises the questions of where would you draw the line, if you would draw the line."
But Roberts decried that characterization. "People become lawyers for different reasons … I became a lawyer ... because I believe in the rule of law," he said.
"In each case, I appreciated that what I was doing as a lawyer, part as a lawyer before the Supreme Court, was promoting the rule of law," he continued. "I appreciate the view of some that say, 'well that sounds like you're a hired gun' … I think that's a disparaging way to capture [the fact that] ... lawyers serve the rule of law, above and beyond their clients."
Roberts also said he would treat society's less fortunate the same way he would deal with the wealthy who often have better lawyers, better legal briefs and an advantage in the court system.
"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts said. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."
Senate Democrats have criticized Roberts for arguing that the government should have intervened in the Supreme Court's 5-4 ruling in Plyler v. Doe, which struck down a Texas law that had required illegal immigrant children to pay tuition at public schools. The court majority said the state had to provide free public education to the children.
Roberts was working for the Reagan administration when he criticized the ruling. On Thursday, Roberts said aside from legal arguments related to the decision, "My own view, every child should be educated."
Schumer on Thursday outlined the pros and cons of Roberts, the latter of which include how while the nominee commented on older cases, he was not as willing to comment on those more recent.
"What we need to know are the kinds of things that are coming before the court now and it makes it hard to figure out what kind of justice you will be, particular because we have very little to go on," Schumer said, referring to Democrats' complaints over the White House not releasing papers Roberts wrote while serving as deputy solicitor general during the administration of George H.W. Bush.
"It's hard for me to comprehend there could be more documents" than the 70,000 or so that have been released that would be helpful, Roberts responded. "I have tried to be fully responsive ...what kind of justice would I be? ... I would begin, if I were in your shoes, with what kind of judge I have been" based on his rulings at the appeals court level.
"Senator Schumer, I don't think you can read those opinions and say, 'those are the opinions of an ideologue,'" Roberts added.
Former Republican National Committee Chairman Ed Gillespie, who has been helping guide Roberts through the confirmation process, said every Supreme Court nominee before Roberts toed the same line in regards to deciding what questions to answer.
"They understood, too, that it would be wrong to sacrifice the impartiality of the judge and make a comment to anyone in the United States Senate that you'd rule one way or another if you're confirmed," Gillespie told FOX News on Thursday.
Questions About Religion, 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"
— Congress has the authority to counter a Supreme Court eminent domain (search) decision that allowed cities the right to seize private property for structures that generate tax revenue. He also said federal legislation banning the use of federal funds for projects based on that decision is an "appropriate approach."
— The issue of whether displaying the Ten Commandments on public property is an area where "the court can redouble its efforts to come to some consistency in its approach"
— "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.