Washington – Chief justice nominee John Roberts moved closer to confirmation Wednesday after gliding through his second full day of Senate questioning and winning resounding endorsements from two key senators.
Republican Sens. Mike De Wine of Ohio and Lindsey Graham of South Carolina said they expected Roberts to be confirmed, declarations that appear to indicate there will not be an attempt to block Roberts’ approval with a filibuster.
DeWine and Graham belong to the so-called Gang of 14 senators, which also includes Colorado Democrat Ken Salazar. The Gang of 14, half Republican and half Democrat, has agreed to filibuster court nominees only under extraordinary circumstances. Without them stepping in to block a vote, Republicans with their five-vote majority likely can confirm Roberts. Salazar remains undecided on his vote.
“I’m quite sure that the Senate is, in fact, going to confirm John Roberts, the man,” DeWine said as he lauded Roberts, 50, with coronation-type praise. “Over the past several months, we’ve examined your life, met with you in private and now questioned you about your beliefs. Throughout this time, your honesty, your integrity, your wisdom and, dare I say, your values have shown through.”
The confirmation hearing continues today, with senators expected to finish questioning Roberts in the morning, and then moving on to other witnesses. The 18-member Senate Judiciary Committee is likely to vote on Roberts as early as next week. Committee chairman Arlen Specter, R-Pa., said he wanted a full Senate confirmation vote before the court begins its fall session Oct. 3.
Roberts on Wednesday deftly handled another eight hours of questioning, quickly responding to questions that asked him to recall numerous Supreme Court and appellate court cases, as well as individual justices’ opinions. He sometimes nodded as if in agreement as senators made long statements, but also stayed inexpressive during sharp questioning on controversial issues. He even showed flashes of humor. Roberts revealed that he thought the Supreme Court’s rulings on freedom of religion under the First Amendment “could be clearer.” He repeated that he believes there is a constitutional right to privacy.
In answering a question about why Roe vs. Wade was so important to women, Roberts gave his fullest answer so far on the issue, but one that still left open the question of how he might rule in future abortion-related cases.
“I know there are people of strongly held views on both sides of the issue” Roberts said. “And I know that the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents, not to take sides in the dispute as a matter of policy, but to decide it according to the law.”
He acknowledged Congress’ authority to make federal laws but said the court has a right to review those laws. Congress’ power, he said, is limited to where there is a clear issue of business or trade that crosses state lines.
In an exchange with Sen. Dianne Feinstein, D-Calif., over a Supreme Court ruling tossing out a federal law that declared gun-free schools, Roberts said the key issue was that the law lacked a requirement that the gun had been transported in interstate commerce, a requirement he said “would be easy to meet in most cases.”
Roberts also twice indicated that he thought the Supreme Court could increase its caseload, noting that the court was deciding about half the number of cases it did in the 1980s, when it reviewed about 150 cases in a term.
Democrats continued their attempts to wheedle answers out of Roberts on key issues such as abortion, the right to die, torture of prisoners and the death penalty. Roberts repeatedly demurred, saying it was inappropriate for him to comment on issues that could come before the Supreme Court.
“We are rolling the dice with you,” Sen. Joseph Biden, D-Del., told Roberts after trying unsuccessfully to get Roberts to say whether the government or a patient, or that patient’s family should have to right to decide when someone can refuse life-sustaining medical treatment.
New York Sen. Charles Schumer, a Democrat, asked why Roberts chose to use a “cone of silence” and suggested that previous Supreme Court nominees had been far more forthcoming.
Roberts rejected that idea, saying he believed he had been “more forthcoming than any of the other nominees” and was willing to comment on issues when he did not think they were likely to come before the court. But like his predecessors, Roberts said, he needed to be cautious.
“It is not a process under which senators get to say, ‘I want you to rule this way and this way and this way, and if you’ll tell me that you’ll rule this way and this way and this way, I’ll vote for you,”‘ Roberts said. “That’s not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes.”
After Republicans praised Roberts for repeatedly stating that he would only interpret the Constitution and not make the law, Feinstein spoke about what she saw as the need for a “living Constitution.”
“I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I’ve heard so many times, ‘I can’t really say because it may come before me,”‘ Feinstein said. “I do expect to know a little bit more about how you feel and how you think as a man, because you’re a very young man to be chief justice. You could be chief justice for 40 years. That’s a very long time.”
Staff writer Anne C. Mulkern can be reached at 202-662-8907 or amulkern@denverpost.com.
