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Sometimes personal, political blur when senators question Roberts

WASHINGTON—For some senators, John G. Roberts' confirmation hearings are not just business, they're also personal.

Sen. Edward Kennedy, D-Mass., considers Roberts as his 1980s nemesis, the pen behind the Reagan administration's words in fighting Kennedy on the Voting Rights Act. Sens. Joseph Biden, D-Del., and Dianne Feinstein, D-Calif., recalled the deaths of loved ones in questioning Roberts on the right to die.

Sen. Charles Grassley, R-Iowa, who helped toughen the Lincoln-era act that prevents fraud against the government, quizzed Roberts' reasoning in an appellate court case that restricted the law's reach.

"I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act," Grassley said.

It's easy to assign political or ideological motives to senators in a high-profile, nationally watched proceeding such as this week's hearings on Roberts' nomination to be chief justice.

But senators such as Grassley and Kennedy also pursued lines of questioning that reflect their longtime legislative causes.

This is especially true of Kennedy, who made civil rights in general and the Voting Rights Act in particular the central theme of his examination of Roberts. In nominating Roberts, President Bush sent to the Senate the lawyer who more than 20 years ago had argued against Kennedy's attempt to expand the Voting Rights Act.

Kennedy, in an interview on Wednesday, said he had no idea in 1981 and 1982 that it was Roberts, then 26 and a lawyer in the Reagan Justice Department, who was writing the legal talking points that Attorney General William French Smith used to criticize Kennedy's provisions.

"I can still remember sitting in the Judiciary Committee at the time that William French Smith testified against it and being absolutely appalled," Kennedy said.

At issue was whether the Voting Rights Act, which outlawed discrimination in voting laws, could be used to fix only intentional discrimination or would apply also to laws whose effect was discriminatory, regardless of their intent.

The Supreme Court had ruled that the 1965 Voting Rights Act could apply only to intentional discrimination. Kennedy set out to change that. But the Reagan administration, fearing that an "effects test" would lead to proportional representation based on race or quotas, fought back.

The issue was finally resolved in a congressional compromise, but not before Roberts, in a December 1981 memo to Smith, argued, among other things, that applying an "effects" standard nationwide was "constitutionally suspect."

On Wednesday, Kennedy pounced on that line, devoting most of his allotted 20 minutes to draw Roberts out on the question. Did he still believe that, Kennedy asked. Roberts argued that he'd been writing as an advocate for the Reagan administration. But Kennedy persisted.

Finally, Roberts replied: "I have no basis for viewing it as constitutionally suspect today."

Later, Kennedy sounded exasperated.

"It shouldn't take 20 minutes of hearing time to have him indicate that it was not constitutionally suspect," he said. "This should be a matter of concern about why he should be so stingy about embracing the progress we have made in terms of knocking down walls of discrimination on race, religion, gender and disability."

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

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