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Roberts Frustrates Committee Democrats
GOP Optimistic On Confirmation

By Charles Babington and Jo Becker
Washington Post Staff Writers
Thursday, September 15, 2005

Democratic senators angrily accused John G. Roberts Jr. yesterday of hiding his views on end-of-life questions, privacy and other contentious issues, but the nominee to be the nation's 17th chief justice refused to be drawn out, and his Republican supporters said his confirmation is virtually assured.

Democrats' frustration boiled over several times during the eight hours of questioning, as Roberts repeatedly declined to discuss his personal or judicial views on matters that he said could come before the court someday. Senators implored him to speak from the heart, but Roberts told them time and again that he would be guided by "the rule of law."

"We are rolling the dice with you, Judge," Sen. Joseph R. Biden Jr. (D-Del.) said. "It's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them."

Sen. Charles E. Schumer (D-N.Y.) accused Roberts of treating the hearing room as a "cone of silence." "It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary," the senator said.

Roberts asked for extra time to defend himself. "I think I have been more forthcoming than any of the other nominees," said Roberts, who had reviewed the confirmation hearing testimony of all the sitting Supreme Court justices in preparation for his hearing. "It is not a process under which senators get to say: 'I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.' Judges are not politicians. They cannot promise to do certain things in exchange for votes."

But Republican Arlen Specter (Pa.), the chairman of the Senate Judiciary Committee, also expressed irritation when Roberts refused to answer questions about several Supreme Court decisions striking down laws passed by Congress to help the disabled and victims of domestic violence. "Why not?" Specter asked sharply. "Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence."

But several Republicans defended Roberts's circumscribed answers for a second straight day and began congratulating him as though he were already on the court. As a sign of their confidence, Republican senators ended their questions late yesterday but agreed to let Democrats have another round today, and then conclude the day with testimony from outside witnesses. The committee plans to vote on the nomination Sept. 22. The full Senate will vote by the month's end, leaders said.

If Democrats will not support Roberts, said Sen. Orrin G. Hatch (R-Utah), they will not endorse any GOP nominee. "They all admit that he is qualified," Hatch said in an interview. "So if they vote against him, it just means they are playing partisan politics and they'll look like hell."

Liberal activists privately said they would consider it a moral victory if all eight committee Democrats oppose Roberts, noting that the 10 Republicans are widely expected to back him. With Republicans holding 55 of the Senate's 100 seats -- and Democrats ruling out a filibuster -- his confirmation is highly likely, activists on both sides said.

In frequently emotional terms, Democrats pressed Roberts to discuss the government's proper role in determining when and how doctors and families can allow a terminally ill or severely incapacitated person to die. "Just talk to me as a father," Biden said. "Just tell me, just philosophically, what do you think?"

Roberts replied, "I'm not going to consider issues like that in the context as a father or a husband or anything else." He could not tell the panel how the law would guide him, he said, because "those are issues that come before the court."

Later, Sen. Dianne Feinstein (D-Calif.) tried again. "I'm trying to see your feelings as a man," she said, adding that she had to make wrenching end-of-life decisions about her father and her husband. Roberts told her, "it is difficult to put yourself in that position."

"All I'm saying is, you wouldn't want the government telling you what to do," Feinstein said. Roberts replied: "Well, I'm happy to say that as a general matter." But when asked if there "should be a basic right of privacy" involved, he said: "Well, that's getting into a legal question."

Roberts testified that he believes it would be "very appropriate" for Congress and state legislatures to consider legislation to effectively modify a recent Supreme Court ruling that expanded the right of local governments to force the sale of private property in the name of economic development. "What the court was saying is 'There is this power' and then it's up to the legislature to determine whether it wants that to be available," Roberts said. "You can protect" people's rights, he added.

Roberts was pressed about a death-penalty position he took during his 1989-1993 tenure as deputy U.S. solicitor general. Roberts had argued that death row inmates have no constitutional right to ask federal courts to consider a new claim of innocence. Sen. Patrick J. Leahy (D-Vt.) asked if he still holds that view.

Roberts replied, "The question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?"

Throughout two days of questions and answers, Roberts has offered few details about his life. But the Indiana native, who attended a private high school and graduated at the top of his class as a Harvard undergraduate and law student, grew animated when Sen. Richard J. Durbin (D-Ill.) asked whether he understood there were real people behind the legal precedents, "families behind footnotes." "What would the powerless, the disenfranchised, minorities and others see in your life experience that would lead them to believe that they would have a fighting chance in your court?" Durbin asked.

Roberts said his life has been comfortable but "isolated in no sense." Critics, he said, should consider the clients he represented: death row inmates and corporations, welfare recipients and environmental groups.

On the issue of abortion, Roberts declined to answer a Republican's question whether a fetus is a person or property. On Tuesday, Roberts said there is a constitutional right to privacy, but yesterday he refused to say whether he agrees with Justice Clarence Thomas, who has written that there is no "general right to privacy." Such a right is considered the legal underpinning of a right to abortion.

Sen. Edward M. Kennedy (D-Mass.) returned to civil rights, disputing Roberts's contention that memos he wrote as a young administration lawyer did not necessarily reflect his own views but rather reflected those of the administration he served.

Questioned by Republicans, Roberts agreed that the Supreme Court should clarify its rulings on public expressions of religious faith. "I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free-exercise clause, could be clearer," he said. And as chief justice, he said, he would work to unite a court that has been sharply divided on many major issues.

Staff writers Amy Goldstein and R. Jeffrey Smith contributed to this report.

© 2005 The Washington Post Company