Senate Panel Approves Roberts

The Senate Judiciary Committee voted yesterday to recommend John G. Roberts Jr. ’76 to be the nation’s seventeenth chief justice, making the judge’s confirmation before the full Senate next week almost certain.

In the 13-to-5 vote, three Democrats on the committee joined its 10 Republican members to endorse Roberts, while the remaining five Democratic senators voted against him.

The committee’s recommendation takes Roberts—a 50-year-old graduate of Harvard College and Harvard Law School—to the next stage in the confirmation process: a Senate-wide debate set to begin on Monday.

Joining the Republican bloc were Senators Russ Feingold and Herb Kohl, both of Wisconsin, as well as Sen. Patrick J. Leahy, the committee’s ranking member.

The five Democrats opposing Roberts’ nomination were Senators Joseph R. Biden of Delaware, Dick Durbin of Illinois, Dianne Feinstein of California, Edward M. Kennedy ’54-’56 of Massachusetts, and Charles E. Schumer ’71 of New York.

Sen. Arlen Specter, R-Pa., the chairman of the Judiciary Committee, praised Roberts’ judicial philosophy, but remained cautious about how President Bush’s nominee would act once on the Supreme Court.

“His approach of modesty and stability, and away from judicial activism, I think, is a model,” Specter said yesterday. “Whether it is carried out remains to be seen.”

Republicans present, including Sen. Orrin Hatch of Utah, who has served on the committee for 29 years, lauded Roberts’ qualifications and his performance during the hearings.

“I have never in my whole time here seen a witness who made such sense and who literally was so superior in every way,” Hatch said. “He’s as good as it gets.”

Explaining his opposing vote, Schumer emphasized Roberts’ reluctance during last week’s hearings to discuss details of issues that might come before the Supreme Court again—a concern shared both by some senators on both sides of yesterday’s vote.

“We’re still unsure of how to answer Roberts?’” Schumer said.

Feinstein also focused on Roberts’ reticence in justifying her vote.

“I don’t ask for promises,” she said. “But I asked for some ability to find a commitment to broad legal principles that form the basis of our fundamental rights.”

Some of the Democrats who opposed Roberts’ nomination noted that their decisions had not come easily, saying that they had made their votes “regretfully” or “reluctantly.”

Feingold said that his vote in favor of Roberts’ nomination “does not endorse his refusal to answer reasonable questions.”

Feingold, like Leahy and Kohl, said that he had based his vote on Roberts’ credentials and on his claim that he is “not an ideologue.”

ROBERTS’ RULES OF ORDER

Yesterday’s committee vote followed four days of hearings last week, during which senators questioned Roberts about his personal views and his judicial philosophy.

Roberts’ decision not to discuss publicly issues he felt might come before the Court again elicited divided reactions among the committee’s members, calling more generally into question the information that future nominees should reveal in confirmation hearings.

Loeb University Professor Laurence H. Tribe ’62, who taught Roberts in law school, said yesterday that the reason for Roberts’ reticence “is fairly straightforward—he wants to be confirmed.”

“Nominees are risk-averse,” Tribe explained. “They don’t need to answer questions that risk alienating people.”

Langdell Professor of Law Martha A. Field ’65 said that Roberts’ reticence did not seem inappropriate to her.

“Judges are supposed to think about the issues as they come up,” she said. “To have given a direct statement on the merits of the issue in your confirmation hearings...would have the appearance of affecting your thinking,” even if there were no actual influence.

Throughout last week’s hearings, senators on both sides of the aisle—including Durbin, Feinstein, Kennedy, and Sen. Mike DeWine, R-Ohio—urged the nominee to consider the human ramifications of the Court’s rulings.

“We need you to always remember that your decisions will make a real difference in the lives of real people,” DeWine said, invoking the advice of Justice Felix Frankfurter.

“Do you see the people behind the precedents? The families behind the footnotes?” Durbin later asked Roberts.

Because “there are an innumerable number of ambiguities in the Constitution,” Tribe said, “trying to find out what [Roberts’ judicial] lens is like is different from trying to find out what his political views are.”

Justices must often try to strike a balance between addressing human concerns and judicial interpretation, he added.

“It’s a tightrope,” he said. “Judges who walk on that tightrope, not equipped with empathy, are likely to fall off.”

When Kennedy asked Roberts whether he would approach the law with “both a heart and a head,” the nominee gave an answer that he apparently hoped would lay the senators’ concerns to rest.

“We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that’s where the legal decisions are made,” Roberts said. “But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.”

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