Washington – Supreme Court nominee John Roberts, on a glide path to Senate confirmation, promised today that he would be a chief justice who respects the law and not an ideologue as some Democrats have said they fear.
Urging senators to look at his two-year record as an appellate judge, Roberts said his 50 opinions would provide a sense of what type of justice he would be in what many expect will be decades on the high court.
“I don’t think if you read those opinions, you’ll say those are the opinions of an ideologue. That should convince you that I’m not an ideologue,” Roberts said. “Look at my briefs and you’ll conclude that’s a person who respects the law.” Republicans were confident that Roberts would win the committee’s majority approval next week and then Senate confirmation, with the backing of some moderate Democrats, before the Supreme Court term begins Oct. 3.
President Bush selected Roberts to succeed the late Chief Justice William H. Rehnquist as the nation’s 17th chief justice.
Sens. Charles Schumer, D-N.Y., and Dianne Feinstein, D-Calif., reflected their party’s reservations about approving the conservative judge who, at age 50, could shape the high court for at least a generation.
“This isn’t just rolling the dice it’s betting the whole house,” Schumer said.
“I don’t know what I’m going to do,” said Feinstein, who added that she had one impression of Roberts after their private meeting last month but now found him to be “this very cautious, very precise man, young, obviously with staying power. … I’m convinced you will be there, God willing, for 40 years. And that even concerns me more because it means that my vote means more.” Feinstein voted to confirm Roberts for the U.S. Court of Appeals for the District of Columbia Circuit; Schumer voted against him.
Frustrated Democrats tried to elicit a sense of John Roberts the man rather than the judge who was a political appointee in the Reagan and first Bush administrations and a multimillion-dollar lawyer in private practice Sen. Richard Durbin, D-Ill., wondered whether Roberts 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.” Schumer questioned whether Roberts would be “a truly modest, temperate, careful judge,” one “who will impede congressional prerogatives but does not use the bench to remake society,” or, as some Democrats fear, one who “will use your enormous talents to use the court to turn back a near century of progress.” Early on in his third – and abbreviated – day of testimony, Roberts said Congress has the authority to pass laws barring discrimination based on race, gender and disability, and he defended his record on minority issues.
He said he had argued cases in favor of and against affirmative action and noted that he had participated in a program to assist minority students considering law school.
“Yes, I was in an administration that was opposed to quotas,” Roberts told Sen. Edward M. Kennedy, D-Mass. “Opposition to quotas is not the same thing as opposition to affirmative action.” Several Democrats have criticized Roberts for assailing the Supreme Court’s 5-4 ruling in Plyler v. Doe, which struck down a Texas law and said the state had to provide free public education to illegal immigrant children.
Roberts, then working for the Reagan administration, criticized the ruling and argued that the administration should have gotten involved in the case.
Feinstein asked if Roberts, as a person, believed illegal immigrant children should be educated. Roberts offered legal responses, before saying, “My own view, every child should be educated.” As chief justice, Roberts would assign the writing of opinions in which he was with the majority. He could keep the best cases for himself, or dole them out to other justices.
Rehnquist would sometimes deal with mundane cases, but he also assigned himself major cases. His last opinion before his death, for example, upheld a Ten Commandments display in Texas.
Roberts rejected the idea of assigning himself cases as a strategic move.
“Trying to use that assignment power in a tactical way – it causes tension on the court and I think undermines the ability of the chief justice – to the extent he has that ability, and it’s obviously limited – to act as a force to help bring about some cohesiveness and collegiality,” the nominee said.
Committee Republicans challenged Democrats to back his nomination.
“If people can’t vote for you, then I doubt that they can vote for any Republican nominee,” said Orrin Hatch, R-Utah.
Democrats were upset that Roberts avoided many of their questions by saying he couldn’t comment on issues that could come before the Supreme Court, on justices he may work with in the future or on cases that are before the U.S. Appeals Court he’s already on.
“Without any knowledge of your understanding of the law – because you will not share it with us – we are rolling the dice with you, Judge,” Sen. Joseph Biden, D-Del., told Roberts, who turned aside questions about abortion, the right to die, the permissibility of torture and other issues.
After finishing with Roberts, senators held a closed-door meeting to review his FBI background check, and then were to hear from outside critics and supporters.
The American Bar Association also was to testify about the “well-qualified” rating it gave Roberts last month.
Bush initially chose Roberts to succeed Justice Sandra Day O’Connor, who announced in July that she planned to retire. But within days of Rehnquist’s death Sept. 3 from cancer, Bush tapped Roberts, a former Rehnquist clerk, to succeed his former boss.
