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Katrina thrusts government's role to the fore in confirmation battle

WASHINGTON—By opening questions about poverty, race and government policies, Hurricane Katrina has made landfall on Washington's deliberations over vacancies on the U.S. Supreme Court and threatens to make John Roberts' confirmation hearings for chief justice a contentious test of conservative thought.

Democrats and liberal groups say Roberts' past opposition to expanded affirmative action and voting rights laws should get extra scrutiny, especially in light of the disproportionate suffering by poor black residents of New Orleans.

Democrats have long advocated a more activist government, while conservatives have pressed for a smaller federal bureaucracy that gives more power to the states. Democrats believe that Katrina has focused attention on a broader function of the federal government—not only in rescue, relief and rebuilding but also in setting policies that protect the most vulnerable.

In that vein, the questions Roberts will face will be part of a larger Democratic strategy designed to confront conservative orthodoxy head on.

"The events of the past week have only underscored that we need Supreme Court justices who value the role of the courts in protecting individuals' rights and freedoms, who understand the nature of discrimination and its continuing impact on our country, and who will uphold the role of the federal government in preserving those rights and acting to protect the common good," said Ralph Neas, president of the liberal People for the American Way.

Roberts was to face hearings Tuesday before the Senate Judiciary Committee as the nominee to replace retiring Justice Sandra Day O'Connor. But on Monday, President Bush nominated Roberts to replace Chief Justice William H. Rehnquist, who died Saturday. The Judiciary Committee planned to delay the start of Roberts' hearings to later this week or next week.

Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, said he believed using Katrina to question Roberts on civil rights was "a stretch."

He said Roberts' legal conservatism makes him much more like Rehnquist than O'Connor, who is considered more moderate. "A Roberts for a Rehnquist ought to be less controversial than a Roberts for an O'Connor," he said.

But Sen. Edward Kennedy, who already was prepared before Katrina hit to spend his hearing time questioning Roberts about civil rights, was expected to emphasize the racial disparities revealed by Katrina's destruction.

Kennedy, D-Mass., is expected to zero in on Roberts' internal memoranda while he was a young lawyer in the Reagan administration, when he advised the White House to fight efforts to expand the reach of anti-discrimination laws and the Voting Rights Act.

"Roberts wants to restrict the role of government," said Jenny Backus, a Democratic consultant. "His early writings ... have really raised question about what he will perceive as the appropriate role for strong centralized government. You will see more questions about that, especially with him as chief."

Despite the stepped up scrutiny, Roberts' confirmation still appears likely.

Chief justices are considered first among equals, but have significant authority in assigning court opinions when they are in the majority, a power that can determine whether a ruling will have broad legal implications or narrow applications.

When Rehnquist was elevated to chief justice in 1986, Democrats criticized his record on civil rights and accused him of working to intimidate black and Hispanic voters as a Republican poll watcher in Arizona in the early 1960s. In the end, Rehnquist got 33 "no" votes, more than any other chief justice in history.

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

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