Hearings' Topic A May Be a Surprise
Democrats Raise Commerce Issue

By Charles Babington
Washington Post Staff Writer
Friday, July 22, 2005

Democratic senators signaled yesterday that they may quiz President Bush's Supreme Court nominee more closely about his views on interstate commerce than on abortion. But some Republicans, sensing that John G. Roberts Jr.'s nomination is off to a powerful start, counseled him to say as little as possible on all fronts.

Judiciary Committee Chairman Arlen Specter (R-Pa.), meanwhile, said Roberts indicated he favors "modest" changes to legal precedents, perhaps suggesting that he would be reluctant to overturn major rulings such as the Roe v. Wade decision on abortion rights. Some liberal groups have expressed fears that Roberts, a conservative jurist, might seek to help overturn Roe , even though he has described it as "settled law."

On his second day of making courtesy calls to key senators, Roberts generally received warm receptions, especially from Republicans who spent more time advising him how to handle his upcoming Judiciary Committee hearings than probing his judicial philosophy. Sen. Charles E. Grassley (R-Iowa), citing court nominees who won unanimous confirmation, said he told Roberts: "It seems like the less they say to the committee, the better off they are." He said Roberts "is a person of few words" who began their 25-minute meeting by saying, "Give me any advice you want to give me."

Another committee Republican, Sen. Orrin G. Hatch of Utah, spent an hour with Roberts and then told reporters, "We chatted about what this process is, how difficult it is to go through." Noting that Democrats will press Roberts for his views on various topics, Hatch said, "He knows he can't express himself on matters that could come before the court."

Specter told reporters about his hour-long session with Roberts on Wednesday. Specter said Roberts dislikes labels such as liberal and conservative, "and his view was that the court ought to be modest."

"The other word that he used, which I thought was very important, was an emphasis on stability," Specter said. "When you talk about a modest approach by a court, and an approach on stability, I think you have critical ingredients of a judge who'd be nonactivist."

Specter said he did not ask Roberts for his views on the major abortion ruling, but he added: "When he talks about modesty and stability, I won't characterize that or apply it to Roe either, but those are important words."

Key Democrats, meanwhile, hinted that the hearings may focus less on abortion -- an emotional issue that many Americans associate with Supreme Court struggles -- than on the Constitution's commerce clause, which regulates interstate commerce. The Judiciary Committee's most senior Democrat, Sen. Edward M. Kennedy (Mass.) , told reporters that he cares about how a Supreme Court justice can affect "real people's lives."

"The most obvious area is in the area of the commerce clause," Kennedy said.

Sen. Charles E. Schumer (D-N.Y.), a panel member, handed Roberts more than 60 questions during their meeting yesterday, including nine on the commerce clause. Among the questions: "Do you believe that Roe v. Wade (1973) was correctly decided?"

Kennedy and other liberals have criticized Roberts's dissent, as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, in a 2003 case known as Rancho Viejo . Roberts cited the commerce clause in arguing that federal environmental laws do not protect a rare species of toads because the animals live only in California and do not cross state lines.

"Neither the Supreme Court nor any circuit court has adopted Judge Roberts' crabbed view of congressional power under the Commerce Clause," the liberal Alliance for Justice said in a report. "The effect of Judge Roberts' views on Congress' Commerce Clause authority might threaten to undermine a wide swath of federal protections, including many environmental, civil rights, workplace and criminal laws."

Some conservative groups have praised Roberts's arguments, saying interstate commerce regulations should not curb a developer's rights in a bid to protect a stay-at-home toad.

As Roberts visited Schumer, Kennedy and others, the prospects of a Democratic-led filibuster of his nomination grew dimmer. After the pivotal "Gang of 14" met privately, several members said there will be no filibuster unless researchers discover a political bombshell in the next few weeks.

The seven Democrats and seven Republicans play a key role because their May agreement positioned them to make a filibuster unsustainable. Republicans hold 55 of the Senate's 100 seats. A filibuster can be stopped with 60 votes or more.

"There was united agreement that it's too early to reach a judgment" on Roberts, said Sen. Joseph I. Lieberman (D-Conn.).

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