Roberts has avoided tipping his hand

In 2003, he fended off Senate questions about his views on divisive issues

President's Nominee For Supreme Court

July 21, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

Democrats on the Senate Judiciary Committee vowed yesterday to push for detailed answers about Supreme Court nominee Judge John G. Roberts Jr.'s views of the law. But when he faced the panel two years ago, Roberts skillfully deflected virtually every question posed about divisive issues he could encounter on the federal bench.

By saying simply that he would follow Supreme Court precedent - or that it was improper to prejudge cases that could come before him on the powerful federal appeals court in the District of Columbia - Roberts deftly concealed his views on issues including the death penalty and abortion during two public hearings and in written answers to senators' questions.

"There's no role for advocacy with respect to personal beliefs or views on the part of a judge," Roberts told the Senate committee in early 2003. "The judge is bound to follow Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases whether there's applicable Supreme Court precedent or not. Personal views, personal ideology, those have no role to play whatsoever."

The strategy worked. Roberts was confirmed that spring by a voice vote in the full Senate for a seat on the U.S. Court of Appeals for the District of Columbia Circuit.

His careful answers two years ago offer a possible guide to a repeat performance before the committee this year, this time as President Bush's choice to fill the first U.S. Supreme Court vacancy in more than a decade.

In 2003, unhappy Democrats complained that they weren't getting the answers they needed, but hundreds of pages of transcripts show how Roberts refused to tip his hand and was buffered by the committee's Republican leaders.

Pressed by Democratic Sen. Richard J. Durbin of Illinois about his views on such cases as Roe v. Wade, the landmark case that established the right to abortion, Roberts called it "settled law" and refused to describe himself as "strict constructionist" in his view of the Constitution.

"I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, `I'm an originalist, I'm a textualist, I'm a literalist or this or that,' Roberts said. "I just don't feel comfortable with any of those particular labels. ... I'll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be."

When New York Democrat Charles E. Schumer complained that Roberts had failed to address one direct question - asking him to name three Supreme Court decisions he is critical of - Roberts firmly steered clear.

"It seemed to me if you are able to say, `I disagree with this binding Supreme Court precedent, and here is why,' I don't see how that would prevent anybody from then saying, `All right, well, what about this one,'" Roberts said.

Democrats and some liberal advocacy groups said yesterday that Roberts would not escape the Supreme Court confirmation process without full disclosure.

`Whole new ballgame'

"It is a whole new ballgame" said Schumer, who was one of three Democrats on the Senate Judiciary Committee to vote against Roberts' nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was confirmed by a voice vote in the full Senate in May 2003.

" A lot of the answers he gave as an appeals court nominee just don't work as a Supreme Court nominee," said Elliot M. Mincberg, legal director and vice president of the People for the American Way, an advocacy group that has opposed many of President Bush's judicial picks.

"Where he says, as an appeals court nominee, `Well, Roe v. Wade is the settled law of the land, and I guess I have to follow it,' as a Supreme Court justice he can change the law."

The White House went on the offensive yesterday to blunt some of the potential questions. "Judges have an obligation to apply the law, not their personal views," with spokesman Scott McClellan said.

Pennsylvania Republican Arlen Specter, chairman of the judiciary panel, said senators would probe Roberts' ideas about the law rather than how he would rule in specific cases, a distinction expected to loom large over the confirmation proceedings.

Mark Hurwitz, a political science professor at the University at Buffalo in New York who studies judicial politics, said that unless there is an unexpected disclosure about Roberts, he is likely to follow the path of previous nominees and be confirmed to the high court without revealing his views on the most sensitive issues to reach the court.

"For the last 25 years, there's been a tradition of not commenting on issues that may come before you on the court," Hurwitz said. "[Clarence] Thomas didn't do it, nor did Sandra Day O'Connor, nor Ruth Bader Ginsburg. The only one who did was [failed nominee Robert H.] Bork, and we know what happened to him.

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