By Amy Goldstein and Jo Becker
Washington Post Staff Writers
Friday, September 16, 2005
John G. Roberts Jr. yesterday summed up his Senate hearings to become the nation's 17th chief justice by declaring, "I'm not an ideologue," brushing aside his early years in the trenches of the conservative Reagan revolution as he portrayed himself as a lawyer and judge devoid of social agendas.
With his confirmation to the Supreme Court virtually assured by solid support among Republicans, who control the Senate, Roberts used the closing moments of his 2 1/2 days of testimony to try -- with uncertain results -- to soothe Democratic skeptics.
Saying that his loyalties are to the Constitution and "the rule of law," Roberts said that he had displayed no ideological bias during his two years as a federal appeals court judge and that he had, during 13 years in private practice, represented clients on all sides of contentious issues.
Some conservatives were alarmed last month over the disclosure that he had helped gay activists win a landmark Supreme Court in 1996. But Roberts testified yesterday that he would have been equally willing to represent the opposing side, the state of Colorado, if it had asked for his help first.
On the other hand, Roberts broke with orthodoxy among Republicans, including President Bush, who say that medical liability lawsuits are out of control. Asked whether he thinks lawyers who represent people in product-liability or medical-malpractice cases are harming the United States, Roberts replied that he did not, citing a former fellow law clerk who he said "does a wonderful job" as a personal injury lawyer.
"If you've looked at what I've done since I took the judicial oath," the nominee said, "that should convince you that I'm not an ideologue."
The careful conclusion of Roberts's 20 hours of testimony leaves one drama unresolved in the Senate role in the first Supreme Court vacancy in 11 years: How many Democrats will join Republicans in voting to give him a seat on the court?
The Judiciary Committee is scheduled to convene for a vote next Thursday, and GOP leaders plan to begin debate on Roberts's confirmation in the full Senate on Sept. 26, with a floor vote sometime that week. That timing would allow Roberts, if confirmed, to join the court when it begins its new term Oct. 3.
Bush originally nominated Roberts to succeed retiring Justice Sandra Day O'Connor but made him his choice for chief justice after the death of William H. Rehnquist on Sept. 3. Bush has not indicated when he intends to name a successor to O'Connor.
All week, Democrats on the Senate Judiciary Committee complained that Roberts was evasive about his views and values on a range of polarizing issues, including abortion, civil rights, the scope of presidential power and the right to die. Even as the hearing was ending, several Democrats urged him to reveal more of what they called his heart.
"Many of us are struggling with . . . what kind of a justice would you be, John Roberts," implored Sen. Dianne Feinstein (D-Calif.)
The eight Democrats on the panel have not said how they plan to vote. Yesterday, Feinstein and several others vacillated openly.
Feinstein said she had expected Bush to select someone more conservative than Roberts appeared to be. "I don't see anything definitive," Feinstein said of his record and testimony. "And I do see things to believe that . . . this is a fine legal scholar who will truly look at the law."
Sen. Joseph R. Biden Jr. (D-Del.) said that he was trying to decide which Supreme Court justice Roberts would resemble most. Biden said that he would vote against Roberts if he decided the nominee were akin to Justice Antonin Scalia but probably would support Roberts if he were most like Rehnquist.
Sen. Charles E. Schumer (D-N.Y.) said, "I, for one, wake up in the middle of the night thinking about it, and have been unsure how to vote." He told Roberts: "You will in all likelihood affect every one of our lives in many ways for a whole generation. So this isn't just rolling the dice -- it's betting the whole house."
Republicans countered that many of them had supported justices chosen by President Bill Clinton, while differing with their views. Sen. Lindsey O. Graham (R-S.C.) took issue with the Democrats' efforts to discern what lies in Roberts's heart.
"There are bleeding hearts and there are hard hearts," Graham said. "And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is 'Adopt my value system,' we're doing a great disservice to the judiciary."
Before the questioning ended, Democrats made a final attempt to draw out Roberts on his views. He answered a greater portion of their questions than he had on Wednesday, when several Democrats erupted in frustration over his refusal to give substantive responses.
At one point yesterday, Roberts backtracked from a position he had advocated in an early-1980s memo concerning a Supreme Court ruling in a Texas case that gave children the right to attend public schools, even if they were illegal immigrants. Roberts had argued that the Reagan administration should have defended a Texas law that allowed schools to exclude such youngsters.
Yesterday, Roberts said: "My own view is that, if you have a child, he or she should be educated. We'll worry about status later." Nevertheless, he added: "As a personal view . . . yes. It's a separate issue as a legal question, as you know."
He also disavowed a 1981 memo on the issue of whether inmates, including those who have been sentenced to death, have a right to file habeas corpus appeals in federal courts, challenging the constitutionality of their convictions. The memo said: "The question would seem to be not what tinkering is necessary in the system, but rather why have federal habeas corpus at all?"
Yesterday, Roberts said that he had simply been endorsing reforms to eliminate a glut of frivolous appeals, as Congress eventually did: "I'm not in favor now and was not in favor then" of eliminating such appeals.
The committee's ranking Democrat, Sen. Patrick J. Leahy (Vt.), questioned Roberts about how he would handle one of the responsibilities of the chief justice: appointing judges to an unusual court, the Foreign Intelligence Surveillance Act (FISA) court, which has gained expanded powers under the USA Patriot Act. Critics have said the FISA court abridges civil liberties in the name of combating terrorism.
Leahy asked whether Roberts, if confirmed, would be willing to work with Congress "to add more transparency" to the court. Roberts replied that the court "is a surprising institution" and said that "the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties." He stopped short of saying he would change the court's ground rules.
After Roberts left the witness chair, Judiciary Committee Chairman Arlen Specter (R-Pa.) and Leahy said they found nothing in a routine FBI background check on Roberts that would disqualify him from serving on the court.
For the rest of the day, the committee heard from more than 30 witnesses who sought to reinforce, sometimes in dramatic terms, the case for or against his confirmation. They included law professors and theologians, former clients and bosses of the nominee, an Alabama girls basketball coach, and a female lawyer whom Roberts had helped win a promotion.
A representative of the American Bar Association, testifying for the Republicans, explained why the organization had given Roberts its highest rating.
Rep. John Lewis (D-Ga.), a civil rights leader who was arrested more than 40 times during protests of the 1960s, testified that he does not accept Roberts's assertion that arguments he made in memos as a high-ranking legal adviser in the administrations of Ronald Reagan and George H.W. Bush did not reflect his personal views. "The judge was on the wrong side of history," Lewis said.
Staff writer Charles Babington contributed to this report.