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Roberts articulates philosophy of judicial restraint

WASHINGTON—In his first public statement since being nominated to the Supreme Court, John G. Roberts Jr. hit one crucial point hard: that the role of judges in America is limited and that he'll embrace the idea of judicial restraint above all else.

It was a big message for a short address.

Roberts took just six of the 15 minutes he was allotted to address the Senate Judiciary Committee. But his carefully chosen words articulate a clear vision of the court.

If confirmed, he would respect precedent (cases already decided by the court) as an important framework for future decisions. And he would focus intently on the words in the Constitution and other law—something that was dear to the heart of Roberts' predecessor and good friend, the late William H. Rehnquist. And he would keep the court out of a good many disputes, leaving most controversies to be settled by the elected branches of government.

Roberts also explained his stance in a very plain, if somewhat trite, analogy, clearly aware that he was addressing not only the Senate's legal minds but also millions of ordinary Americans for the first time. Comparing judges to umpires, Roberts said his job was to call balls and strikes, not pitch or bat. It requires a sense of humility, he said.

"No one ever went to a ballgame to see an umpire," Roberts said.

The theme of judicial restraint isn't a new one for Roberts, whose career suggests that it's his preferred approach to the law.

It's a theme, however, that's been overwhelmed in recent weeks by the hundreds of memos released from Roberts' early days as a lawyer in the Reagan White House. Those documents made clear how committed Roberts was to President Reagan's brand of conservative politics and how ably he could interpret his view of restraint to match those political aims.

Over the next week, as senators question him about the issues, they'll be pressing him to determine what will be his strongest guide as head of the Supreme Court: the politics or the restraint.

If Roberts is confirmed and is truly a taut adherent to the ideal of restraint, he'll be something of a loner on the court. The other justices, liberal and conservative, all indulge at times in a more aggressive assertion of judicial power.

This week, the tough questions for Roberts will come primarily from the Judiciary Committee's Democrats, who'll try to discern how his view of the court's role and the Constitution will affect issues such as civil rights legislation, gender discrimination issues and abortion law.

Does Roberts' view of judicial restraint mean he'll acquiesce to Congress on those issues? Or does his strict—and, some say, narrow—view of Congress' role mean he'd lead the court to rein in legislative power in those areas?

Judicial restraint would seem to prevent a justice from voting to overturn the constitutional right to abortion, which has been recognized by the court for more than 30 years and re-affirmed in more than 30 subsequent rulings. But how much regulation would Roberts permit?

Roberts' embrace of judicial restraint may also lead Democrats to ask how he would have acted in the 1954 ruling in Brown v. Board of Education, which struck down school segregation. Could Roberts' philosophy have produced the same decision, which overturned nearly a century of court precedent but is also widely viewed as a necessary instance of court activism?

Roberts also will face some tough questioning from Republicans such as committee Chairman Sen. Arlen Specter of Pennsylvania, who said Monday that he was concerned by the Rehnquist-led court's eagerness to strike down congressional laws.

Specter said he didn't think it was the court's role, for example, to second-guess legislators who had adopted a law federalizing certain domestic violence charges. And he didn't appreciate inconsistent interpretation of the Americans with Disabilities Act, which the court said couldn't protect the job of a woman with breast cancer but did guarantee a paraplegic access to a state courthouse.

Both sides will try to pin Roberts down on whether he will resist "judicial activism," which Republicans and Democrats have adopted as the moniker for any ruling with which they disagree.

But if Roberts is, indeed, consistent in his view of judicial restraint, he'll disappoint them both, court watchers and historians have said. Restraint is a judicial philosophy that doesn't translate neatly to political outcomes; it simply respects the boundaries set for the branches of government by the Constitution and resists over-reaching.

It's being the umpire, as Roberts said Monday, rather than a player or even a coach.

The rest of his hearings, and his tenure on the court, if he's confirmed, will reveal how deeply Roberts believes that.

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

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