William Fisher

NEW YORK, Sep 13 2005 (IPS) — Senators continued their judicial minuet with Supreme Court Chief Justice nominee John G. Roberts, with the witness refusing to answer questions about abortion, but expressing the view that privacy is a Constitutional right and asserting support for most of the court’s landmark civil rights decisions.

Roberts ducked abortion questions by Judiciary Committee chairman Arlen Specter, a pro-choice Republican of Pennsylvania, saying the issue is one that might come before the Supreme Court.

However, he reiterated his earlier statement that Roe v. Wade – the 1973 case that affirmed a woman’s right to abortion – is “settled law” and asserting that there is a Constitutional right to privacy, although the word is never used in the U.S. Constitution.

He also said there is nothing in his Catholic faith that would prevent him from adhering to settled law on the right-to-choose issue.

“Do you believe that the right to privacy applies to the beginning of life and the end of life?” asked Sen. Diane Feinstein, a California Democrat.

Roberts declined to respond because both issues are likely to come before the Supreme Court.

During his earlier confirmation hearing for the Court of Appeals, Roberts refused to say whether he thought there was a constitutional right to privacy.

Roberts told Sen. Edward M. Kennedy he also agreed with Supreme Court decisions including Brown v. Board of Education, which ended racial segregation in public schools, the Civil Rights Act of 1964, which outlawed racial discrimination in public accommodations, the Voting Rights Act of 1965, which ended bias against African-Americans in casting their ballots, and the Civil Rights Restoration Act, which outlawed racial discrimination by colleges and universities whose students received Federal aid.

He said he thought, “The Voting Rights Act was restorative of all other rights.”

Pressed by Sen. Kennedy, the nominee agreed that Congress has the right to act to correct the impacts of Hurricane Katrina, in which Kennedy said, “African Americans bore the brunt” of suffering.

Roberts was questioned by ranking Democrat Patrick Leahy of Vermont on his views regarding presidential power. “If Congress has the right to declare war, does it have the power to end a war?” he asked.

Roberts declined to answer, saying the War Powers Act might well come before the Supreme Court.

However, Leahy asked Roberts if he agreed with the now-infamous 2002 memorandum by then Deputy Attorney-General Jay Bybee asserting that the president’s role as commander-in-chief gave the executive branch the power to overrule the will of Congress, including the use of torture against prisoners.

“No one is above the law, including the president”, Roberts said, adding that he was also opposed to the internment of some 120,000 Japanese-Americans during the Second World War.

Senators asked Roberts if he still agreed with controversial passages from memos he wrote when he was a lawyer in the Justice Department under Pres. Ronald Reagan and in the White House counsel’s office in the administration of George H.W. Bush. Roberts said he was expressing the positions of those two administrations.

An exasperated Sen. Joseph Biden, Delaware Democrat, was sharply critical of Judge Roberts for declining to answer questions regarding issues that might come before the Supreme Court, citing other Supreme Court nominees who did answer such questions.

Biden also questioned the nominee on his earlier statement that gender discrimination was a “perceived” problem.

Roberts responded that his use of that word was never intended to imply that gender discrimination did not exist, adding that he was “acutely aware” of the problem from his own family – two sisters and a wife who is a practicing attorney. He said he regarded such discrimination as unconstitutional.

Sen. Feinstein read a list of statements from Roberts’s early memos that disparaged the role of women and their right to equal treatment under the law. “Did you really think that way and do you think that way today?” she asked.

“I have always believed in equal rights for women,” Roberts said.

With the exception of Committee Chairman Specter, most Republican senators offered relatively softball questions and expressed admiration for the nominee.

Roberts is currently a judge on a Federal Court of Appeals – a position to which the same Senate committee confirmed him unanimously two years ago. He was chosen to be an Associate Justice of the Supreme Court, but was nominated to be Chief Justice upon the death of Chief Justice William H. Rehnquist.

His confirmation has been opposed by virtually every civil and women’s rights organisation, as well as by those concerned with separation of church and state. Endorsements have come principally from conservative groups, including those on the religious right.

The White House has provided the Committee with Roberts documents relating to his service in the Justice Department and the White House Counsel’s office, but has refused to release others written when he was Deputy Solicitor General.

This has led most Democrats to question what the government “is trying to hide,” and to point out that the Solicitor General’s office is “the lawyer for all Americans”.

Sen. Herb Kohl, Democrat of Wisconsin, said lawmakers unhappy with particular court rulings should use legislation to limit the jurisdiction of the courts.

Roberts declined to opine on the constitutionality of such laws, but said he thought “limiting the power of the judiciary is a bad policy idea”.

The role of the United States’ most secret court – the so-called FISA court authorised by the Foreign Intelligence Surveillance Act – was raised by Sen. Mike DeWine, Ohio Republican. This court is responsible for authorising FBI wiretaps and other forms of surveillance, and its members are appointed by the Chief Justice.

Roberts said that, because the court is secret, its members have to meet the highest standards of integrity.

DeWine also asked Roberts about what he called “the shrinking public square” – limitations placed on political speech by citizens, for example, by designating “free speech zones”, often far from the target of protest.

“It’s a free country,” Roberts responded, but added that the right of protest can be shaped by the ownership of the property to be used for the protest. He also said the First Amendment to the Constitution protects political speech to a lesser extent than free speech as expressed in pornography.

In a brief statement yesterday, the first day of his confirmation hearings, Judge Roberts likened the role of a Supreme Court justice to that of an umpire at a baseball game. “Umpires don’t make the rules, they enforce them. Nobody ever went to a ballgame to see the umpire. My job is to call balls and strikes, not to pitch or bat,” he said.

He added: “I come before you with no agenda, no platform. But I have a commitment. I will confront every case with an open mind.”

Today, as yesterday, Roberts spoke without notes. He was articulate, poised, well informed, and showed his sense of humor. However, he appeared to be following the tried-and-true dictum to, in the words of one senator, “answer only as many questions as he has to to get confirmed”.

Barring a major misstep or some new and shocking revelation, Roberts is widely expected to be confirmed. Democrats may be saving their bigger guns for President Bush’s next Supreme Court nominee, who will replace the retiring Justice Sadra Day O’Connor, and who may well be the ‘swing vote’ on a closely divided court.

There will be a second round of questions and answers this later this afternoon and the hearings continue tomorrow.