WASHINGTON – Senate Judiciary Chairman Arlen Specter (search) plans to use the confirmation of Supreme Court nominee John Roberts (search) to criticize what he calls the high court's judicial activism, saying Tuesday that justices have started acting as a "super legislature."
"I am concerned about the Supreme Court's judicial activism which has usurped congressional authority," Specter, R-Pa., said in a letter to Roberts, who will face senators' questions at his confirmation hearing on Sept. 6.
On Wedndesday, two influential Washington lobbying groups publicly announced their positions on Roberts, with the U.S. Chamber of Commerce supporting President Bush's nominee and the liberal People for the American Way opposing the conservative judge.
The two announcements, which came within minutes of each other, are not surprising. The chamber has been a supporter of many of the president's nominees and policies, while People for the American Way has opposed many of Bush's judicial appointments.
Roberts served as deputy solicitor general under the first President Bush and as an associate counsel for the attorney general under President Reagan. Ralph Neas, PFAW's president, said Roberts was key in many of those administrations' policies.
"John Roberts was no mere foot soldier carrying out the policies of the administration he served. He was a key adviser to the attorney general and the White House counsel," Neas said. "The fundamental rights and liberties of Americans are too precious to entrust to someone who spent more than a decade trying to narrow them."
The U.S. Chamber of Commerce says Roberts' sterling reputation as one of Washington's best appellate lawyers factored into its decision.
"Roberts has attracted broad, bipartisan support for his fairness, keen intellect, open-mindedness, and judicious practice of the law," said Tom Donohue, the chamber's president and CEO. "He is highly regarded and well respected by the legal and business communities."
The chamber is the world's largest business federation representing more than three million businesses and organizations.
Roberts did some work for the chamber during his time as a private attorney. He represented the U.S. Chamber of Commerce in a battle over a groundbreaking law in Maine designed to lower drug prices for state residents without insurance coverage. The law let the state negotiate for lower prices and if prices didn't drop in three years, Maine could impose price controls.
The Chamber of Commerce, with Roberts as co-author of a friend-of-the-court brief, opposed some of the law's requirements on grounds that they discriminated against out-of-state companies. The court allowed Maine to go forward with its plan to try to force drug companies to lower their prices for the poor and uninsured.
Elsewhere, women's groups say Roberts should face questions on issues relating to women. They cited memos from his years as a lawyer in the Reagan administration showing skepticism toward the right to privacy and affirmative action — areas in which retiring Justice Sandra Day O'Connor was a swing vote.
"Just as John Roberts deserves a full hearing, so do the concerns about women," said Linda Basch, president of the National Council for Research on Women, which represents about 100 women's research and policy centers at universities.
Linda Chavez, president of the conservative Center for Equal Opportunity, said the recent attacks on Roberts on women's issues were unfair.
"What are his beliefs about women?" asked Chavez, who worked with Roberts in the White House during the 1980s. "He worked with women as colleagues. He married a very high-powered lawyer. This is a man quite comfortable in his generation working in a setting with members of the opposite sex as equals."
Democratic Sen. Dianne Feinstein, a member of the Senate Judiciary Committee, was delivering a speech on Wednesday in her native California. She said the court under Chief Justice William Rehnquist has used certain amendments to limit Congress' ability to address nationwide issues with federal legislation. She added that if Roberts is anti-abortion, she can't vote for him.
"It would be very difficult for me to vote to confirm someone to the Supreme Court whom I know would overturn Roe v. Wade and return our country to the days of the 1950s," she was saying, according to excerpts released before her speech.
Specter warned Roberts at the beginning of the month that he'd be questioned about the Supreme Court's attitudes toward Congress. In Tuesday's letter, Specter said he wants the nominee to talk to him about "manufactured rationales used by the Supreme Court to exercise the role of super legislature and make public policy decisions which is the core congressional role under the Constitution."
Specter said he will question Roberts about two Americans with Disabilities Act cases that the court decided in 2001 and 2004. In 2001, the high court declared the ADA's Title I unconstitutional in seeking to hold a state liable for employment discrimination, Specter said, but in 2004 the same court upheld the ADA's Title II in mandating access to a paraplegic who had to crawl up steps to a courtroom.
"These decisions pose two major problems," Specter said. "A lack of stability or predictability in the law because the two cases, decided three years apart, are virtually indistinguishable; and, two, the court's judicial activism in functioning as a super legislature."
Congress had held hearings around the nation to support the ADA's passage, but the court said in the 2001 case that the legislative record simply "fails to show that Congress did in fact identify a pattern of irrational state discrimination," Specter said.
Justice Antonin Scalia, in his 2004 dissent, said the 2001 decision meant the court was setting itself up as Congress' "taskmaster" and derided the notion that "the courts (and ultimately this court) must regularly check Congress' homework."
"Isn't there a lack of respect for Congress demonstrated by the Supreme Court, as Justice Scalia points out that it is 'ill advised' for the court to set itself up as 'taskmaster' to determine that Congress has done its 'homework'?" Specter asked.