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Democrats and GOP at odds on what to ask, how to judge Roberts

WASHINGTON—When Sen. Charles Schumer, a liberal Democrat from New York, finished grilling John G. Roberts two years ago during the confirmation hearings for Roberts' federal appellate court seat, the chairman of the Judiciary Committee couldn't hide his disdain.

"I have a lot of respect for Senator Schumer," said Sen. Orrin Hatch, the Utah Republican who chaired the committee then. "He comes to these meetings and he asks questions. Most of them, I believe, are very intelligent questions. Some I totally disagree with. Some, I think, are dumb-ass questions, between you and me."

Two years later, Schumer and other Democrats on the committee are ready to ask again. And once again the two parties are sparring over what is an appropriate line of inquiry and what isn't.

Since President Bush nominated Roberts this week for an opening on the Supreme Court, senators of both parties have been pretty clear about the kind of quizzing he might face when the confirmation hearings begin later this summer.

As in 2003, they'll focus on such social issues as abortion and race as well as Roberts' judicial philosophy. His answers at his earlier hearings were both instructive and evasive. This time around, Democrats and even some Republicans have put him on notice that the questioning will be tough.

"I'm absolutely convinced that the administration knows exactly where this person is on issues, and the important issue is for the American people to know," Sen. Edward Kennedy, D-Mass., the longest serving member of the Judiciary Committee, said Friday.

Kennedy, Schumer and Sen. Richard Durbin, D-Ill., were the only committee members who voted against recommending Roberts' confirmation as an appellate judge. All of them said Roberts wasn't candid enough.

Specifically, Roberts refused to say whether some key Supreme Court precedents were properly decided.

In one lengthy exchange with Schumer, Roberts said disclosing his opinions could "distort" the judicial process.

"It is either an effort to obtain a prior commitment from someone as a nominee about how they will decide the case ... or it will have a distorted effect on how that judge will appear to parties appearing before him," he said.

Even so, his responses did offer hints to his judicial approach.

After describing conservative Justice Antonin Scalia as an "originalist" who hews to the intent of the authors of the Constitution, Roberts said: "I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document. The proper approach instead varies depending on the provisions at issue."

It's those distinctions that some Judiciary Committee members intend to probe this time.

Schumer, who met with Roberts on Thursday, gave him a list of 80 questions he said Roberts should be prepared to answer. They range from "what is your view of the quality of the legal reasoning" in the landmark abortion case Roe v. Wade to "do you more frequently agree with Justice Scalia's opinions, or Justice (Ruth Bader) Ginsburg?"

Hatch this week once again bristled at Schumer's approach. "Judges are like umpires or referees," he said. "If we were hiring an umpire or referee, would we grill him or her about which side he or she were likely to favor in the upcoming matches? Of course not."

Sen. Arlen Specter, R-Pa., the new chairman of the Judiciary Committee, appears to have a much broader view of what questions are permissible.

He draws the line at asking how Roberts would rule on a specific case. Otherwise, Specter said this week, "The hearings will be full, fair and complete, and the 18 members of the Judiciary Committee will have a full opportunity to examine Judge Roberts in some detail.

"I believe that it is appropriate to ask about jurisprudence."

Kennedy too said he'd stop at one line of inquiry. Asked whether Roberts' wife's free legal work for Feminists for Life, an anti-abortion group that promotes adoption, would be fair game in the hearings, Kennedy said: "I think it ought to be out of bounds. I admire her for that. I think that's a very noble and committed activity. I think she deserves a lot of credit. ... She's to be admired and respected for it."


(c) 2005, Knight Ridder/Tribune Information Services.

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