By MARGARET TALEV
September 14, 2005
"Judges don't think of themselves along an ideological spectrum," the federal appeals judge and prospective chief justice, who has worked for two past Republican presidents and is being supported by conservative leaders, also said. "I don't."
In testimony to the Senate Judiciary Committee, Roberts did offer some insights into a recent ruling on government seizures of private property and the legitimacy of affirmative action and minority voting rights protections. But he continued to resist directly answering many of senators' questions about abortion, assisted suicide, religion, gay rights, president's wartime powers, the civil rights of so-called enemy combatants, and what matters could be regulated by the federal government versus states.
"This process is getting a little more absurd the further we move," said Sen. Charles Schumer, D-N.Y. "You agree we should be finding out your philosophy and method of legal reasoning - modesty, stability - but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.
"It's as if I asked you what kind of movies you like . . . and you say, 'I like movies with good acting' . . . and I ask you, 'No, give me an example of a good movie,' and you don't name one," Schumer continued. "I ask you if you like 'Casablanca' and you respond by saying, 'Lots of people like 'Casablanca.' You tell me it's widely settled that 'Casablanca' is one of the great movies."
Roberts was quick with a cinematic retort: " 'Doctor Zhivago' and 'North by Northwest.' " He also said he felt he had been more forthcoming than past nominees on several fronts, but that he was not willing to discuss issues that might come before the court again.
Throughout Wednesday's hearing, several members of the committee made clear they considered the remaining hurdles a formality for the Harvard-trained lawyer who has argued 39 cases before the high court and once clerked for the late Chief Justice William Rehnquist, whom he would replace. The court, now in recess, reconvenes Oct. 3.
Sen. Jon Kyl, R-Ariz., told Roberts the hearing is "the only time before you take your position on the court you'll have the opportunity to be directly lobbied in the political context in an appropriate way. You need to hear from us what our concerns are, even though perhaps we're trying to draw you our in areas that you obviously can't be drawn out in with respect to future cases."
Senators and activists pushing for, and against, Roberts already are looking ahead to a second nominee, who would replace the retiring Sandra Day O'Connor. The court has been divided 5-4 on several important decisions in recent years, but Rehnquist's death and O'Connor's planned retirement are providing President Bush an opportunity to shift the court in a more conservative direction, to the extent that he can predict how a nominee might rule in future cases.
Bush has yet to announce his choice of a second nominee, but he is expected to move quickly following the final Roberts vote, if not before. While Roberts' stellar resume, pleasant manner and short paper trail from two years on the bench have made him fairly difficult for liberals to attack, his expected ease of confirmation by the Republican-led Senate might raise the stakes for the next nominee unless the president taps a comparably filibuster-proof candidate.
Roberts did respond substantively to some questions during Wednesday's daylong hearing. He acknowledged he was surprised by a Supreme Court ruling earlier this year that said cities could seize private property for economic development, and he said in his opinion it is appropriate for Congress and state legislatures to respond by passing laws to minimize the effect of that ruling.
Perhaps assuaging some civil rights activists' concerns over memos he wrote as a legal adviser during the Reagan administration, Roberts told Sen. Ted Kennedy, D-Mass., that he agreed that "you need to look at the real-world impact" of affirmative action policies in deciding their validity. He also said he believed the Voting Rights Act was constitutionally solid, and that if questions over protections for minority voters came before him on the court, "I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position."
Roberts told senators the nation is "not benefited" by the Supreme Court's recent tendency to issue multiple dissents and concurrences to opinions, and that if confirmed as chief justice would seek to minimize those divisions.
Asked whether Congress had the power to protect gays and lesbians against employment discrimination, he told Sen. Dianne Feinstein, D-Calif., "Personally, I believe everyone should be treated with dignity." But as to the question of congressional authority over gay rights in the workplace, he declined. "That's an issue I have to maintain silence on."
Roberts' nomination still had to clear the panel's closed-session review of a confidential FBI report on his background, which is standard procedure for nominees; a final day of questions and witness testimony Thursday, a committee vote next week and a full Senate vote the week of Sept. 26.
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