WASHINGTON -- Democrats on the Senate Judiciary Committee feel they have a precedent for asking probing questions for John G. Roberts Jr., President Bush's nominee for chief justice, during Senate confirmation hearings that begin today.
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During his confirmation hearings in 1987, Supreme Court nominee Anthony M. Kennedy told the Senate Judiciary Committee that the U.S. Constitution established "a zone of liberty, a zone of protection, and a line that's drawn where the individual can tell the government, 'Beyond this line you may not go.' "
Kennedy was confirmed.
Five years later, Justice Kennedy joined a court opinion reaffirming the right to abortion in words that echoed his confirmation testimony.
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," wrote Kennedy and Justices Sandra Day O'Connor and David H. Souter. "Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state."
For Democrats on the committee, Kennedy's comments about privacy before he joined the Supreme Court exemplify how the confirmation process should operate. They hope to gain similarly enlighting answers from Roberts today.
As Sen. Joseph Biden of Delaware noted in a recent speech, Kennedy was confirmed after the Senate had rejected President Reagan's first choice, Robert H. Bork, because Bork didn't believe the Constitution provided for a general right to privacy.
The fact that Roberts would succeed the late Chief Justice William H. Rehnquist instead of the retiring O'Connor, for whose seat he originally was nominated, will alter the chemistry of the questioning.
Roberts now is slated to replace a justice who dissented from the Roe v. Wade decision that legalized abortion rather than one who voted to uphold it, so it will be harder for senators to portray him as someone who would alter the court's balance on abortion rights.
On the other hand, the fact that the chief justice administers the entire federal court system means that Roberts is certain to be questioned closely about his views on judicial administration and on the balance of power between the judiciary, the Congress and the executive branch.
As a result, even while Roberts' upgrade to chief justice might lessen the importance of his views on abortion rights, it seems likely to heighten the scrutiny he will receive from senators this week. Sen. Charles Schumer of New York, and other Democrats on the Judiciary Committee, have said the elevation of Roberts' nomination to chief justice "raises the stakes."
In addition to abortion and privacy, Democrats are certain to ask Roberts whether the First Amendment erects a "wall of separation" between church and state; whether laws that disfavor women must be subjected by the court to "strict scrutiny;" and whether he believes the current Supreme Court has gone too far in second-guessing Congress' authority under the Constitution's commerce clause to legislate national solutions to social, economic and environmental problems.
That last question also will be pressed by the Republican committee chairman, Sen. Arlen Specter of Pennsylvania, who has warned Roberts that he would ask the nominee if he agrees with the suggestion Rehnquist made in one case that judges have a better "method of reasoning" than Congress.
Not all the probing questions will come from Democrats and moderate Republicans. Sen. Sam Brownback, R-Kan., a conservative critic of Roe v. Wade, plans to take a "trust but verify" attitude toward Roberts and hopes to hear the nominee indicate he might vote to overturn the 1973 decision.
There will be many more questions, of course.
Before announcing its opposition to Roberts, People for the American Way, a liberal group with close ties to some Senate Democrats, published a list of "Twenty Questions Any Supreme Court Nominee Should Answer."
They include: -- Under what circumstances would you consider it appropriate to overrule past precedent? -- What is your view of property rights vis-a-vis individual rights? -- Does the 14th Amendment require the states as well as the federal government to abide by the Bill of Rights? -- Are non-citizens detained at the U.S. border entitled to the full panoply of constitutional rights that citizens enjoy? -- Do you believe the references to liberty in the Fifth and 14th Amendments means the Constitution protects certain rights even though it does not explicitly enumerate them?
Roberts might say more than expected. The conventional wisdom is that Roberts, an experienced advocate who has honed his forensic skills recently in mock committee hearings called "murder boards," will say as little as possible about these issues, pleading an ethical obligation not to take public positions on matters that might come before the court.
In 1987, after Robert Bork discussed his constitutional philosophy with the Judiciary Committee in detail, then-Sen. Alan Simpson, R.Wyoming, told him, "This will never happen again," and the Bork nomination went down to defeat in the Senate.
Roberts supporters also have reminded senators that Justice Ruth Bader Ginsburg, a Clinton appointee, ruled out answering some questions during her confirmation hearings.
Still, some observers familiar with John Roberts and the confirmation process think that the conventional wisdom may be wrong, and that Roberts might be more forthcoming than either his supporters or his critics expect.
Michael A. Vatis, a former Justice Department official who served as a law clerk for Ginsburg on the U.S. Court of Appeals and who worked on Ginsburg's Supreme Court confirmation hearings, conceded that any Supreme Court nominee will try to keep senators from "landing a glove on you and knocking you out."
But he cited two reasons Roberts might oblige inquiring minds on the Judiciary Committee to some extent.
One is the paper trail of memoranda from Roberts' years as a young lawyer in the Reagan administration, in which he suggested, among other things, that Congress could strip the Supreme Court of jurisdiction over issues like busing and school prayer; that laws against sex discrimination should be interpreted narrowly; that a Supreme Court decision striking down a moment of silence for schoolchildren was "indefensible," and that it was wrong to read a "so-called right to privacy" into the Constitution.
Vatis said that, although Ginsburg declined to answer questions about how she would rule on the Supreme Court, she was willing to talk about her decisions as an appeals court judge and her academic writings.
"Confirmation hearings end up turning largely on the historical record because it's impossible to draw a meaningful line between asking a nominee an appropriate question and asking him to prejudge a case," Vatis said.
Because Roberts has been on the U.S. Court of Appeals for the District of Columbia Circuit for only two years, his decisions don't provide much history for the committee to chew over, although Roberts is likely to be asked about two opinions: one in which he questioned whether Congress had the authority to protect a "hapless toad" species that lived entirely in California and another in which he and two colleagues upheld the military tribunals established by the Bush administration to try suspected foreign terrorists held at Guantanamo Bay Naval Base.
But then there are those other Roberts writings -- the thousands of pages from his service during the 1980s as an assistant to Attorney General William French Smith and then as an associate White House counsel.
"With Roberts you're in a situation where he has written a lot, and I think his memoranda are actually more revealing than most of the media have interpreted them to be," Vatis said. "He has gone pretty far out in stating his opinion about the Constitution and even more so about statutes, and I think he does it in a way that it would be hard for him to say now that he was merely parroting the administration's policy or the Department of Justice policy.
"Those memoranda are ultimately the only solid ground for probing questions because he has no choice but to give answers on those things."
The result could be illuminating, Vatis suggested, even if Roberts said that he had changed his mind about some issues over the past two decades. "I would certainly hope that any person, particularly a Supreme Court nominee, would acknowledge that his views have evolved," Vatis added.
The second reason Roberts might prove more forthcoming than expected, Vatis said, is his proclivity for debate. "He does like to engage in intellectual issues, and that is hard to keep in check even with all his political handlers and the people prepping him and these murder boards advising him to stay away from any hard questions," Vatis said.
"I would predict that he is probably going to offer somewhat more substance than his handlers would prefer just because that is ultimately more consistent with his personality, and if you're sitting through a multi-day hearing your personality is going to come out."
