Nominee Spars With Senators

WASHINGTON—Facing his final questions before the Senate Judiciary Committee yesterday, John G. Roberts ’76 made his case to Democratic members who had voiced frustrations with his testimony this week, assuring them that he would not be an “ideologue” if confirmed as chief justice of the United States.

As the committee members grew increasingly divided along partisan lines, Roberts’ responses remained consistent, and his poised demeanor held steady throughout the four days of hearings.

While prominent Democratic members intensified their objections to Roberts’ reluctance to discuss details of legal cases and issues, many Republican senators on the committee continued to offer high praise for President Bush’s nominee, who is a graduate of Harvard College and Harvard Law School.

Roberts repeatedly said he prefers not to delve into matters that might come before the Supreme Court in the future, insisting he will be guided by a strict adherence to the rule of law. But this stance so irked the Democratic senators on Wednesday that they accused him of deliberately obscuring his personal views. They called for additional time with the nominee, causing the questioning to spill over into yesterday.

“Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, judge,” Sen. Joseph R. Biden, D-Del., said on Wednesday. “It’s kind of interesting, this kabuki dance we have in these hearings here, as if the public doesn’t have a right to know what you think about fundamental issues facing them.”

Sen. Charles E. Schumer ’71, D-N.Y., also asserted that Roberts had been “less than forthcoming” with the committee.

“It seems strange, I think, to the American people that you can’t talk about decided cases—past cases, not future cases—when you’ve been nominated to the most important job in the federal judiciary,” Schumer said.

Yesterday, Schumer echoed Biden’s comments from Wednesday, saying, “This isn’t just rolling the dice—it’s betting the whole house.”

But despite those comments, Roberts did not budge from his position.

“Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed,” he said.

Sen. Arlen Specter, R-Pa., the committee’s chairman, appeared dissatisfied with Roberts’ responses during an exchange over laws aiding the disabled and victims of domestic violence. He was one of the few Republican members of the committee to seem irked.

“Judge Roberts, I’m not talking about an issue. I’m talking about the essence of jurisprudence,” he said. But, when questioned during a break, Specter did not protest Roberts’ reticence.

“He didn’t answer some of my questions, and I understand why he didn’t,” Specter said.

Specter, along with several other committee members, encouraged Roberts to create a consensus among the justices and avoid 5-4 decisions if he is confirmed.

Throughout the day, Roberts fielded a variety of questions that ranged from eminent domain, rights to life and death, and civil rights to the power of the executive, the interpretation of statutes, and the role of judges.

When Schumer asked Roberts yesterday what kind of a justice he would be if confirmed, the nominee encouraged him to look at the opinions he had written over the past two years as a judge on the U.S. Circuit Court of Appeals for the District of Columbia.

“I don’t think you can read those opinions and say that these are the opinions of an ideologue,” Roberts said.

PARTISAN POLITICS

Although Wednesday’s hearing proved contentious at times, most experts still agree that Roberts is likely to win confirmation, needing only a majority of votes from a Republican-controlled Senate.

A Senate-wide vote on Roberts’ confirmation is scheduled for next Thursday. Some Democrats on the committee said they had not decided how they would vote, and a few Republican senators attributed that behavior to partisan politics.

“This is a test of the Senate more than it is of Judge Roberts,” Sen. Lindsey O. Graham, R-S.C., said. “I hope the Democrats...give the same respect we gave to Justice [Ruth Bader] Ginsburg”—a nominee of former president Bill Clinton—“who was, in my opinion, a very hard vote for a Republican.”

He asserted that the hearings appeared to have become a test of political allegiance rather than of judicial aptitude.

Sen. Dianne Feinstein, D-Calif., phrased her remarks in a less confrontational manner than her colleagues.

“What has begun to concern me a little bit is Judge Roberts the legal automaton, as opposed to Judge Roberts the man,” she said. “But I do expect to know a little bit more about how you feel and how you think as a man.”

Several Republican committee members, including Sen. Jon Kyl, R-Az., offered their full endorsement for Roberts during the questioning on Wednesday.

“This, I think, is a great civics lesson,” Kyl said. “Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials, who make policy, and judges, who are not supposed to make policy.”

During a break, Sen. John Cornyn, R-Tex., called Roberts “the most qualified nominee who has ever been put up for a Supreme Court vacancy.”

SPARRING PARTNERS

In spite of the contentiousness of the hearings, the Democratic senators injected humor into their speeches on Wednesday. Saying the proceedings were “getting a little more absurd the further we move,” Schumer soon prompted laughs from an audience that had become acquainted with Roberts’ rhetorical patterns.

“It’s as if I asked you, ‘What kind of movies do you like? Tell me two or three good movies,’” the New York senator said. “And you say, ‘I like movies with good acting.’”

“Then I ask you if you like ‘Casablanca,’ and you respond by saying, ‘Lots of people like “Casablanca,”’” Schumer continued. “You tell me it’s widely settled that ‘Casablanca’ is one of the great movies.”

But Roberts responded to Schumer in kind, getting his own share of laughs when he began his answer, “First, ‘Dr. Zhivago’ and ‘North by Northwest.’”

The nominee then delivered a serious answer to Schumer’s charges: “I think I have been more forthcoming than any of the other nominees,” said Roberts, who reviewed testimony from the confirmation hearings for the current justices in preparation for his own hearing. “I have taken what I think is a more pragmatic approach and said, ‘If I don’t think that’s likely to come before the court, I will comment on it.’”

Schumer and Roberts, both graduates of Harvard College and Harvard Law School, also shared a brief exchange that harkened back to their days in Cambridge. The senator referenced Franklin L. Ford, a former dean of the Faculty of Arts and Sciences who taught history at Harvard while both men were there.

“I think a modest approach requires beginning with the body of precedent,” Schumer said. “That’s what judges do. And that’s a recognition, just as Professor Ford said, that...we’re not smarter than our fathers who laid down this precedent.”

After a brief pause, Schumer repeated, “Professor Ford,” to which Roberts echoed, “Professor Ford.”

If confirmed as the seventeenth chief justice, Roberts will be the first graduate of Harvard College or Harvard Law School to hold that position, as well as the youngest chief justice in more than two centuries.

—Staff writer Daniel J. T. Schuker can be reached at dschuker@fas.harvard.edu.