Schumer ‘Surprised’ by Judge Roberts
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – The nominee to be chief justice of the United States, Judge John Roberts Jr., fielded hours of questions yesterday on abortion, civil rights, and other issues, telling senators he believes that a right to privacy exists in the Constitution and that the court has a role to play in extending freedoms, but declining to say whether he agrees with specific cases in which those principles have been applied.
Judge Roberts remained poised as the chairman of the Senate Judiciary Committee, Senator Specter, a Republican of Pennsylvania, launched the questioning portion of the confirmation hearing with a battery of pointed questions on abortion. The nominee described the Roe. v. Wade decision that overturned state laws limiting abortion as “settled precedent,” but did not say whether he agrees with its central holding.
Instead, he used the questions as an opportunity to deliver a tutorial on stare decisis, a judicial principle regarding the weight that settled cases hold in the face of future challenges. Judge Roberts outlined a three pronged test, referred to by Mr. Specter at one point as “the Roberts doctrine,” in explaining when to revisit precedents: its impact on stability, the workability of a precedent, and whether a precedent has been eroded.
Mr. Specter, looking to establish that Roe v. Wade has special precedential power, prompted his staff to produce a triptych of posters in the hearing room, which listed more than three-dozen cases in which the decision has been affirmed. Asking Judge Roberts whether he thinks the case represents a “superduper precedent,” Judge Roberts replied, to laughter, “Well, it’s a phrase that hasn’t made its way into Supreme Court decisions yet.”
A New York Democrat who has taken a lead role in speaking for Democrats on the issue of Roe v. Wade, Senator Schumer, said toward the end of the day that he was “pleasantly surprised” by several of the answers Judge Roberts gave, including his statements about privacy. It was a startling concession, since opponents of abortion heaped similar praise on the nominee throughout the day for his answers on the issue.
Democrats held their fire early on, with the most heated questions coming from Senator Kennedy, a Democrat of Massachusetts, who is perhaps best remembered during his long tenure on the committee for attacking a previous nominee, Robert Bork, for his views on abortion. Yesterday, Mr. Kennedy zeroed in on memos Judge Roberts wrote as a young lawyer relating to civil rights. Citing the economic disparities revealed by Hurricane Katrina, Senator Kennedy suggested the memos reflect a lack of sensitivity to civil rights.
“I’m deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings,” Mr. Kennedy said. “In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society. It also seems to me you were trying to undo the progress that so many people had fought for and died for in this country.”
Judge Roberts responded to the assertion as he did to most other questions about his early memos as a lawyer in the Reagan administration. He said the memos do not necessarily reflect his current or past views. During a comic parry with Senator Kohl on with which of the earlier memos Judge Roberts does agree, Judge Roberts allowed that he now disagrees with one in which he suggested term limits for justices of the Supreme Court.
“I wasn’t aware then of everything that’s involved in the confirmation process,” he said.
It was one of several flashes of humor from Judge Roberts, who exasperated at least one senator by conducting himself calmly and speaking deliberatively throughout the day. He described the decision that ended school segregation, Brown v. Board of Education, as a welcome jolt to settled law and peppered his answers with historical citations that bolstered his reputation as an expert on the court and its precedents.
Asked by Mr. Specter if he agrees with President Kennedy’s assertion from the campaign trail in 1960 that the Catholic church did not speak for him on public matters, Judge Roberts said: “I agree with that, senator.”
Senator Biden, a Democrat of Delaware, acknowledged the nominee’s skill in responding to questions. “It’s like pitching to Ken Griffey,” Mr. Biden said, referring to the Reds slugger. Mr. Biden followed the compliment by attempting to coax answers from Judge Roberts by challenging his repeated assertion that judges not comment on cases that may come before them in the future. After repeated failures, Mr. Biden complained to Mr. Specter in the middle of a response that the nominee was “filibustering.”
“His answers are misleading,” Mr. Biden said. “His answers may be misleading, but they are his answers,” Mr. Specter said. Mr. Roberts interjected the exchange: “With respect, they are not misleading, and they are accurate.”
Judge Roberts bristled slightly under questioning by Senator Leahy, a Democrat of Vermont, on the separation of powers among the three branches of government. Citing a memo Judge Roberts wrote on the issue in the early 1980s, the nominee said Mr. Leahy was “vastly over-reading” the memo. He later accused Mr. Kennedy of misrepresenting his position on the Voting Rights Act of 1965. The exchange drew four rebukes from the chairman, directed at Mr. Kennedy for cutting off the nominee mid-sentence.
The role of the Supreme Court and its justices was a central theme of the day, with Judge Roberts answering about 40 questions on the topic. And it was a topic at which the nominee was perhaps at his best. He used questions about the court to promote the view that judges should be humble and that the role of the courts is a limited one. Judge Roberts even distinguished himself from a justice that Mr. Bush has cited as one of his favorites, Justice Scalia, by noting his own willingness to discuss cases he does not expect to come before the court again. Justice Scalia famously refused to discuss the case Marbury v. Madison, which established the powers of the court, during his own hearing in 1986.
“I do not have an overarching judicial philosophy that I bring to any case,” Judge Roberts said. “I have told people when pressed on the point that I think all good justices focus on the facts. I think most cases turn on the facts.”
Unlike the largely ceremonial first day, yesterday’s portion of the week-long hearing was a busier event, with activists and aides filing in and out of the hearing with rapid responses for and against statements made by Judge Roberts. About 150 reporters sat at cafeteria-style tables behind the nominee, many watching television screens and some giggling at misspellings by the stenographer. The sound of reporters typing underscored the changes that have developed since the last hearing, of Judge Ruth Bader Ginsburg, in 1993.
Supporters of Judge Roberts welcomed the early and intense inquiry over abortion by the Republican chairman. Senator Brownback, a Republican of Kansas, who favors overturning Roe v. Wade, said the questions allowed the nominee to establish early his principles on the matter, which he characterized as the “600 lb. gorilla in the room.” Most summarized the day as a victory for their choice.
“It’s apparent this is one of the best constitution lawyers of our time,” Senator Hatch, a Republican of Utah, said. “I don’t see why Democrats just fold up their tents and let him go.”
Opponents characterized the nominee’s second day as a study in evasion. The president of People for the American Way, Ralph Neas, criticized Judge Roberts for not answering questions directly.
“Yesterday he was talking about baseball,” Mr. Neas said. “Today he played dodgeball.”