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Specter Hints at What Roberts Can Expect
Judiciary Panel Will Probe Nominee's Views on High Court's 'Judicial Activism'

By Charles Babington
Washington Post Staff Writer
Wednesday, August 24, 2005

The Senate Judiciary Committee chairman warned Supreme Court nominee John G. Roberts Jr. yesterday to expect tough questions about the court's "judicial activism" and lack of respect for Congress.

The comments mark the second time this month that Sen. Arlen Specter (R-Pa.) has signaled plans to use Roberts's confirmation hearing as a forum for sharply criticizing what Specter describes as the high court's tendency to denigrate Congress's thoroughness and wisdom in passing various laws. Specter's questions could present Roberts with the difficult choice of disagreeing with the committee chairman or rebuking justices he hopes will soon be his colleagues. The committee's hearing begins Sept. 6.

In a four-page letter to Roberts, Specter criticized portions of Supreme Court rulings and comments on two cases involving the Americans With Disabilities Act, which Congress passed in 1990. "I am concerned about the Supreme Court's judicial activism which has usurped congressional authority," Specter wrote. Endorsing language from a dissenting opinion in a 2004 case, Tennessee v. Lane , the senator said the court has "set itself up as 'taskmaster' to determine whether Congress has done its 'homework,' which demonstrates lack of respect" for the legislative branch.

Specter particularly criticized Chief Justice William H. Rehnquist's writings in a 2000 decision, United States v. Morrison , involving the Violence Against Women Act. He told Roberts he will ask whether he agrees that Rehnquist's reasoning is an example "of manufactured rationales used by the Supreme Court to exercise the role of super legislature." Specter's letter did not address the courts' rulings so much as justices' comments that he says show a disrespect for Congress and its diligence in making laws. He praised a dissenting opinion in a 2001 disabilities case that said courts should not "sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations."

On Aug. 8 Specter sent Roberts a similar letter regarding Supreme Court cases that overturned laws dealing with interstate commerce. "Members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress's competence," Specter wrote then. He said Roberts will be asked whether there is "any real justification for the Court's denigrating Congress's 'method of reasoning' in our constitutional structure of separation of power."

Judiciary Committee member Charles E. Schumer (D-N.Y.) praised both of Specter's letters yesterday. Specter, he said, "has made it clear that learning a nominee's judicial philosophy on important cases is essential in deciding whether or not he should be confirmed to a lifetime appointment to the Supreme Court."

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