'Judges Are Not Politicians,' Roberts Says
As Hearings Begin, Democrats Call for Fuller Answers on Civil Rights Views

By Charles Babington and Jo Becker
Washington Post Staff Writers
Tuesday, September 13, 2005

John G. Roberts Jr. opened the first Supreme Court confirmation hearing in 11 years yesterday by portraying himself as a humble, non-political judge who would interpret the law "without fear or favor" if he became the 17th chief justice of the United States.

After listening to three hours of senators' opening statements, in which Democrats expressed fears that he would move the court to the right on abortion, civil rights and other issues, Roberts sought to dispel such speculation. Though he offered no specifics on his views, Roberts said justices must have "the humility to recognize that they operate within a system of precedent."

"I have no platform," he told the Senate Judiciary Committee in a brief speech without notes in the ornate Russell Caucus Room. "Judges are not politicians who can promise to do certain things in exchange for votes." Rather, he said, "judges are like umpires. Umpires don't make the rules; they apply them."

Although the stewardship of the Supreme Court is at stake for potentially decades to come, yesterday's hearing seemed almost anticlimactic, with public attention riveted on the aftermath of Hurricane Katrina and Democrats still pressing for 15-year-old documents that might give them better ammunition against Roberts. With few doubting that Roberts, 50, will ultimately win confirmation, senators of both parties used yesterday's forum to highlight their contrasting legal philosophies and views of the court's role in society.

Many Republicans used their allotted 10 minutes apiece to urge the nominee not to answer questions about legal issues that might come before the court. But Democrats said he must satisfy them that he will safeguard the rights of women, disabled people and minorities in the voting booth and workplace. Some also pressed him to recognize a constitutional right to privacy, which underpins the Supreme Court's legalization of abortion nationwide.

"This is a confirmation proceeding," said Sen. Russell Feingold (D-Wis.), "not a coronation. It is the Senate Judiciary Committee's job to ask tough questions."

President Bush's choice to succeed the late William H. Rehnquist will face hours of questions, starting today, from the panel's 10 Republicans and eight Democrats.

With some Republicans congratulating Roberts as though his confirmation is assured in the GOP-controlled Senate, Democrats warned that, if nothing else, he will have to earn their votes by fully explaining his criticisms of a variety of policies aimed at eliminating discrimination, including affirmative action and some aspects of the Voting Rights Act. Those criticisms were found in reams of memos that Roberts wrote as a young lawyer in the Reagan administration.

"I believe the federal government should stamp out discrimination wherever -- wherever -- it occurs," Sen. Joseph R. Biden Jr. (D-Del.) told him. "If I look only at what you've said and written . . . I would have to vote no. You dismissed the constitutional protection of privacy as, quote, 'a so-called right.' . . . You dismissed gender discrimination as . . . 'merely a perceived problem.' "

Sen. Dianne Feinstein (D-Calif.), the only woman on the committee, said, "It would be very difficult for me to vote to confirm someone to the Supreme Court whom I knew would overturn Roe v. Wade ." In the 1980s, Roberts wrote that the landmark abortion ruling was wrongly decided and should be overturned, but he since has suggested that the ruling is "settled law" that need not be revisited.

Despite the Democrats' warnings, Roberts's televised performance clearly pleased Republican senators and White House aides. His seven-minute speech "almost moved me to tears," Sen. Jeff Sessions (R-Ala.) told reporters. White House adviser Ed Gillespie, who sat just behind Roberts, assured reporters "there were no notes or anything he spoke from."

Lawmakers' preoccupation with the hurricane catastrophe pervaded the hearing on filling the first chief justice vacancy in nearly two decades. At least two Democrats tried to weave the storm's devastation into their arguments, saying the disproportionate impact on poor people and ethnic minorities underscores the need for a judiciary sympathetic to the nation's most vulnerable.

"We cannot continue to ignore the injustice, the inequality and the gross disparities that exist in our society," Sen. Edward M. Kennedy (D-Mass.), the committee's most senior member, told Roberts. He said Roberts's writings on civil rights suggest there are "real and serious reasons to be deeply concerned" about the direction he would take the court and about "his commitment to equal opportunity. . . . This hearing is John Roberts's job interview with the American people."

Roberts came for the interview well-prepared. Dressed in a dark suit, crisp white shirt and red tie, he introduced his parents; three sisters; his wife, Jane; and their two young children, whose faces alternately betrayed fear, amusement and awe at the scores of cameras and bright lights packed into the templelike hearing room. The senators, many of them grandparents, could not resist greeting the children as cameras clicked furiously. "You're not at all nervous, are you?" Sen. Patrick J. Leahy (D-Vt.) said to Jack Roberts, 4, who at one point sat in his father's lap and posed like a bodybuilder.

Just how much Roberts should say in response to today's questions was the subject of considerable partisan debate yesterday. Republicans warned Roberts against answering "litmus test" questions that could jeopardize his impartiality on cases likely to come before the Supreme Court.

"Some have said the nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people," said Sen. Orrin G. Hatch (R-Utah). "These might be catchy sound bites, but they are patently false."

But Democrats argued that Americans have a right to know where Roberts stands on issues of profound import to their lives, disputing Republican contentions that Justice Ruth Bader Ginsburg, who was appointed by President Bill Clinton, refused to answer questions about her views on such issues as abortion, discrimination and criminal law.

"It is not enough to say that you will be fair," said Sen. Charles E. Schumer (D-N.Y.), adding that he is sure that conservative Justice Antonin Scalia and the liberal Ginsburg think they, too, are fair. "But in case after case, they rule differently," Schumer said. "They approach the Constitution differently."

Some of the most pointed questions, however, may come from Judiciary Committee Chairman Arlen Specter (Pa.), a Republican moderate and frequent maverick. While Specter said he does not expect Roberts to share his views on Roe v. Wade , he will question him on his previously expressed views on women's rights, term limits for federal judges and what he called the "extreme positions taken by the Supreme Court in denigrating the role of Congress" by striking down a number of laws it has passed.

While Republicans such as Sen. Charles E. Grassley of Iowa charged that Democrats who seek Roberts's views on specific issues are doing so because they "only want judges who will do their political bidding on the bench," others made it clear that they have priorities they would like to see the Supreme Court uphold.

Sen. Sam Brownback (R-Kan.) decried federal courts that "are redefining the meaning of marriage, deciding when a human life is worthy of protection, running prisons and schools by decree," and "removing expressions of faith in the public square." He called Roe v. Wade a judicial "exercise of raw political power" and said "nearly 40 million children have been aborted in America."

Democrats renewed their request for a limited number of documents dating from Roberts's tenure in 1989 to 1993 as principal deputy solicitor general. From that perch, Roberts helped shape and argue the George H.W. Bush administration's positions in hundreds of Supreme Court cases. The letter, sent yesterday to President Bush, was signed by three Democratic members of the pivotal "Gang of 14," a bipartisan group considered key to averting any filibuster of Roberts's nomination.

Staff writer Amy Goldstein contributed to this report.

© 2005 The Washington Post Company