Roberts Seduces Democrats Until Schumer Turns
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WASHINGTON – For the second straight day, Judge John Roberts Jr. deftly fielded hours of questions on abortion, civil rights, and the separation of powers, deflecting question after question on specific cases that could come before him in the future but taking every opportunity to offer his views on the proper role of judges and the courts.
The nominee’s digressions seemed to seduce even some Democrats on the Senate’s 18-member judiciary committee into thinking that he might help to unify the Supreme Court on contentious issues that divide it – until Senator Schumer of New York, who said the previous day that he was “pleasantly surprised” with answers Judge Roberts gave on the issue of privacy, turned on the nominee for refusing to discuss cases in which privacy has been applied.
Mr. Schumer’s change of heart followed a day in which Democrats who had been unsuccessful in ruffling Judge Roberts attempted to establish that the nominee was a mechanical practitioner of the law who would be unable to sympathize with the problems of women, gays, and minorities if he is confirmed.
That line of questioning reflected the two competing views of the judiciary that have emerged during the hearing: Republicans have expressed confidence in him based only on his judicial principles, and Democrats have expressed frustration at not knowing how he would apply those principles.
Judge Roberts responded to questions about his views on specific cases by explaining the reasoning in the case in question – when pressed for his personal views, he often demurred. Asked by Senator Biden, a Democrat of Delaware, if Congress should say whether a person has a right to refuse lifesaving medical treatment, the nominee acknowledged the difficulty of such decisions but said his own view is not relevant to the job of a judge.
“Those are issues that come before the court,” he said. “And, as a result, I will confront those issues in light of the court’s precedents with an open mind. I will not take to the court whatever personal views I have on the issues … They won’t be based on my personal views. They will be based on my understanding of the law.”
Abortion came up early, with the nominee reiterating his view that the 14th Amendment contains a substantive rather than a merely procedural right to privacy. He also responded to questions about a recent Supreme Court case that paved the way for the seizure of private property by the government by saying the court’s decision in the case, Kelo v. New London, requires Congress, not the court, to determine when seizures are justified.
Judge Roberts remained calm and attentive during nine hours of questions. He declined an invitation to take a break when it was decided early in the evening to extend questions beyond what had been scheduled previously. He remained unruffled when Mr. Schumer changed the tenor of the hearing in the late afternoon with questions aimed at distinguishing whether the nominee was “a mainstream conservative” or an ideologue.
The issue for Mr. Schumer came down to privacy. On Tuesday, he seemed satisfied when Judge Roberts said he agreed with the Supreme Court’s ruling in a 1965 case that found the Constitution contains a right to privacy that includes the right of married couples to buy contraception. The case, Griswold v. Connecticut, was used as the basis for a later decision by the court, Doe v. Bolton, that extended the privacy right to include a women’s decision to have an abortion.
Yesterday, however, Mr. Schumer noted that Justice Clarence Thomas also agreed with the privacy right found in Griswold v. Connecticut during his own confirmation hearing. Justice Thomas explained in a later opinion that while he agrees with the 1965 case, he does not believe in a “general” right to privacy. When Judge Roberts declined to say whether his own view of privacy differs from Justice Thomas’s, Mr. Schumer became exasperated.
“Let me just say, sir, in all due respect – and I respect your intelligence and your career and your family – this process is getting a little more absurd the further we move,” Mr. Schumer said. “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.”
Privacy was not the only issue in which a tie between Judge Roberts and the Supreme Court’s two most conservative justices, Justice Antonin Scalia and Justice Thomas, arose. Judge Roberts distinguished himself from Justice Scalia by characterizing his approach as pragmatic rather than theoretical and by noting that he favors cobbling majorities rather than carving out an independent view from his colleagues.
At one point, Mr. Schumer asked Judge Roberts if he was “in the mold of Judge Thomas and Judge Scalia.”
“Well, Senator, I’ll give the same answer I gave yesterday to Senator Graham when he asked if I would be in the mold of the chief justice,” Judge Roberts said. “And the answer is, I will be my own man on the Supreme Court, period.”
The comments by Mr. Schumer came as at least two Republicans on the committee stated they will vote for Judge Roberts. Senator Graham, a Republican from South Carolina, said during a break that Democrats were “establishing a litmus test on abortion, which is bad for America.”
Nearly all the senators have complimented Judge Roberts for being impressive under questioning. Mr. Biden said the nominee’s skill was such that Democrats and Republicans seemed to think he was the right choice.
“Now, one of the things that’s been amazing to me is that you are one of the best witnesses I think have come before this committee, and I’ve been here 30-some years,” Mr. Biden said. “You’ve convinced the folks who share Senator Brownback’s view that you’re going to be just right for them, and you’ve convinced the folks that share Senator Kennedy’s view that you’re going to be just right for them.”
The chairman of the committee, Senator Specter, a Republican of Pennsylvania, said he was satisfied with the answers he received. He said he now has a sense of how Judge Roberts would rule on a challenge to Roe v. Wade, but declined to say what his impression is.
“I have a sense of how he’d rule, but I’d have no sense if I said what my sense was,” Mr. Specter said.