Senators talk politics, while Roberts focuses on law

WASHINGTON—It was on the last day of John G. Roberts' confirmation hearings that a crucial disconnect between him and the senators questioning him became clearest.

Sen. Richard Durbin, D-Ill., pressed Roberts for more on his approach to civil rights, the environment and disability law, saying he wanted to know about the causes and beliefs that mattered most to the nominee.

Roberts professed allegiance to something quite different.

"I became a lawyer because I believe in the rule of law," Roberts said. "If you believe in civil rights, environmental protection or rights for the disabled ... you're not going to be able to vindicate those rights if you don't have a place where you know you're going to get a decision based on the rule of law."

That seemed to be the tale of the hearings all week. Senators from both parties asked largely political questions, trying to force Roberts to embrace policy preferences they favored. Roberts tried to talk about the law, and painted a portrait of his legal approach that, if accurate, would bring a level of conservative restraint to the high court that some legal analysts say it hasn't had in decades.

Roberts made clear that he does not share the approach of the court's most conservative members—and President Bush's favorites—Antonin Scalia and Clarence Thomas. And he distinguished himself in other important ways from his old boss and mentor, William H. Rehnquist.

But his reluctance to go into detail made it difficult to clearly grasp how deep those distinctions might run. Certainly, that reluctance led to visible frustration from some Democratic senators and accusations that Roberts was not being forthcoming.

But if senators had asked more questions about the law itself, instead of pressing on policy questions that most nominees never answer anyway, legal experts say, Roberts might have offered fuller explanations, giving a clearer picture of where he stands.

"I think in some cases it would just have been a matter of reframing the questions from a policy framework to a constitutional framework," said Doug Kendall, executive director of the Community Rights Counsel, a public-interest law firm in Washington. "There were some fundamental constitutional values that underlie many of the Democratic senators' questions, but they weren't speaking in terms of law."

Despite that disconnect, Roberts talked at length about his views in a broad range of areas, and positioned himself as a judge with a high commitment to impartiality and open-mindedness.

Restraint was the theme he returned to time and again, insisting that the value he most respects is the limited role carved for the courts, and the judiciary's obligation to hold the other branches of government to their own defined constitutional roles.

He repeatedly spoke of his commitment to precedent and laid out a complicated set of tests he would apply before overturning settled law. A judge's personal disagreement with a ruling, he said, was not enough.

He acknowledged that the right to privacy was constitutionally protected, and assigned it "substantive" value, which many other jurists do not.

His testimony suggests strongly that he'll be different from justices Scalia and Thomas, but also distinct from Rehnquist, for whom Roberts clerked in the early 1980s.

Rehnquist rarely articulated the heightened respect for precedent that Roberts did, and, in fact, voted to overturn one of the court's most controversial rulings, Roe v. Wade, among other settled cases.

Roberts said he supports affirmative action, in the form of efforts to increase diversity by considering race among many different factors, but does not support quotas. Rehnquist was, throughout his career, against any consideration of race.

And Roberts said he believes civil liberties don't change during wartime, while Rehnquist wrote in a 2000 book that sometimes those liberties must be curtailed.

Roberts' testimony leads some court watchers to believe that he will be different from all the other justices on the current court and that he harkens back to a model embodied by judges who truly embraced an agenda-free, restrained approach.

"I come away with a very strong impression that Roberts will be a much more classical judicial restraint justice than any of the current justices," said court historian David Garrow, comparing Roberts to justices like John Marshall Harlan and Robert Jackson, who served on the court decades ago. "He betrays no real policy agenda."

Garrow said that outlook could present a challenge to Roberts in trying to lead the other justices.

"I believe he believes in shrinking the social or political footprint of the court," said Garrow. "But can you think of any current justices, right or left, who believe the same thing?"

Others said it's too early—and Roberts revealed too little about what he really thinks—to say for sure how the nominee will perform as a justice.

"I don't think the hearings gave us a much better sense of how he will approach hot-button social issues," said University of Pennsylvania law professor Nathaniel Persily. He said the many memos Roberts wrote as a young lawyer—some expressing dim views of civil rights and gender discrimination laws—were more informative.

Kendall, of the Community Rights Council, agreed that Roberts didn't clear up many questions he had about his views. But he added that if Roberts lives up to the model of restraint he articulated, "he will end up being viewed as a great chief justice."

Roberts' answers might have been more satisfying if the Senate questioning had been more pointed from a legal perspective.

Democratic Senators, for example, focused intently on Roberts' views on the Voting Rights Act and affirmative action—current civil rights issues about which the nominee refused to comment specifically because they could come before the high court again.

But Kendall noted that no one asked him about his views on a footnote from a 1938 court ruling—described by a former justice as the most celebrated footnote in constitutional law—that formed the basis for the court's view on its role in protecting minorities.

Whether he supports that case—some jurists quarrel with it—would have said something about how he might apply his stated support for civil rights.

Senators spent a long time arguing with Roberts about his views on recent court rulings that reined in Congress' regulatory power.

But no one asked about the more fundamental rulings that underpin that power, including a key 1942 ruling.

"I would like to have seen someone ask him whether that case deserves the same respect as Brown v. Board of Education," Kendall said, referring to the case that desegregated public schools. "It would have given me a better sense if he was willing to give his own personal views about cases that are settled law, and those are clearly settled," Kendall said. "And his answers to those questions would have been illuminative. They could have done a better job mining that."


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

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