John G. Roberts Jr. today told senators weighing his nomination to be chief justice that it is "very appropriate" for Congress to consider legislation that would counter a recent Supreme Court ruling that allows cities to seize private property in the interest of private economic development.
Appearing before the Senate Judiciary Committee on the third day of his confirmation hearings, Roberts came in for some pointed questioning from Democrats who expressed frustration with his refusal to give opinions on decided cases and provide more of a personal portrait of himself.
The hearing room has no sign that reads "check your views at the door," Sen. Charles E. Schumer (D-N.Y.) told Roberts at one point. "Your failure to answer questions is confounding me." He accused the nominee of being "less forthcoming with this committee than just about any other person who has come before us."
Roberts calmly disagreed, saying there was a "great danger" that the confirmation hearing could be turned into a "bargaining process." Judges "cannot promise to do certain things in exchange for votes," he said. "I think I have been more forthcoming than any of the other nominees," although sometimes "it is difficult to draw the line" on which cases to discuss, he said.
Schumer later rejected the bargaining argument, saying he was not asking Roberts to "tailor your answers to what you think we want to hear." The senator said he was still trying to determine whether Roberts is in the "conservative mainstream" or is "an ideologue."
But Roberts declined to place himself on an ideological spectrum compared to other judges. "I don't know where I fall," he said, adding that he has sided with judges appointed by Democrats in some cases and with Republican appointees in others.
Sen. Arlen Specter (R-Pa.), the chairman of the committee, said the panel will convene at 9 a.m. tomorrow for more questioning, with a vote on the nomination scheduled for next Thursday. He said Senate Republican leaders want to hold a floor vote to confirm Roberts on Sept. 26.
Roberts was asked early in the session about a Supreme Court ruling in June in the case of Kelo v. City of New London, which said local governments can force property owners to sell to private developers when officials decide there is a public benefit, such as increasing the tax base. The court ruled 5-4 that people's homes and businesses -- even those not considered blighted -- can be taken against their will for private development if the seizure serves a broadly defined "public use." Critics said the ruling effectively expanded the right of local governments to seize private property under eminent domain, while proponents backed the majority's argument that "promoting economic development is a traditional and long accepted function of government."
Noting that the ruling had caused "an uproar across the country," Sen. Sam Brownback (R-Kan.) asked Roberts, "Isn't it now the case that it's much easier for one man's home to become another man's castle?"
Roberts said the high court majority had including a "caveat" in the decision, saying they were ruling only in the context of an urban redevelopment plan and noting that some states have passed legislation restricting the seizure power.
When Brownback noted that Congress is also considering legislation, Roberts said, "And I think that's a very appropriate approach to consider." He said the court leaves it up to legislatures to determine whether and how they want to exercise eminent domain powers.
"That leaves the ball in the court of the legislature," Roberts added. The Supreme Court majority in the case "said if the legislature wants to exercise that power, basically that the court's not going to second-guess the judgment that this is a public use. And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next."
Roberts declined to say whether he thinks the decision was correct, since he may have to deal with the issue if he is confirmed and it comes before the high court again.
The ruling "did leave open the question of whether it applied in a situation that was not a broader redevelopment plan," Roberts said. "And if the issue does come back before the court, I need to be able to address it without having previously commented on it."
Congress has been contemplating legislation that would bar federal funding for any project that proceeds under the ruling.
Sen. Herbert Kohl (D-Wis.) reminded Roberts that he had said he was "surprised" by the Kelo decision in private conversation.
"I did tell you that was my initial reaction," Roberts said. "We all learned in law school . . . that one of the basic propositions is that you don't take property from A and give it to B." He reiterated that eminent domain is essentially a matter for legislatures, which can opt to place restrictions on seizures.
Sen. Lindsey O. Graham (R-S.C.) said he has received "more phone calls about the Kelo case than anything the Supreme Court has done lately." He urged Roberts to let the justices know that the public respects the high court, "but there is a limit."
In response to questions from Graham, Roberts said he was proud to have worked for president Reagan as a young attorney in the early 1980s and did not think he had been "racially insensitive" in some of his writings for that administration, as critics have charged.
Roberts, 50, was nominated by President Bush to replace Chief Justice William H. Rehnquist, who died of cancer Sept. 3 at age 80. If confirmed, as expected, Roberts would become the youngest chief justice in more than 200 years and could potentially shape the direction of the court for decades.
Currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Roberts would be the first new member of the Supreme Court in 11 years.
The nominee also came under questioning from Specter on what the committee chairman regards as "denigrating comments" and a superior attitude toward Congress by the high court. Specter complained about court opinions that criticized Congress's "method of reasoning," implied it was incompetent and described the court as the "taskmaster" of Congress to make sure it has done its homework.
He said he and his colleagues "take umbrage at what the court has said" in some cases. "And we don't like being treated as school children, requiring, as Justice [Antonin] Scalia says, a taskmaster," Specter added.
"Do we have your commitment that you won't characterize your method of reasoning as superior to ours?" he asked.
Replied Roberts, "Well, I don't think the court should be taskmaster of Congress. I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution. And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding, development of a record, and also, the authority to make the policy decisions."
As he did during yesterday's hearing, Roberts repeatedly parried questions seeking to elicit his views on controversial legal issues that he said could come before him on the Supreme Court. The questions included several on abortion from two senators who strongly oppose it: Republicans Brownback of Kansas and Tom Coburn of Oklahoma.
Asked by Brownback whether individuals with disabilities have constitutional rights while they are still in the womb, Roberts said he must refrain from answering.
Some of the sharpest exchanges came when Sen. Joseph R. Biden Jr. (D-Del.) grilled the nominee on privacy and right-to-die issues. Although Biden called Roberts "one of the best witnesses to come before this committee" in his three decades on the panel, he later expressed frustration with the judge's answers.
Pressed for a personal opinion as a family man on whether a legislature should be empowered to decide on keeping or removing a comatose person's feeding tube, Roberts said, "I'm not going to consider issues like that in the context as a father or a husband or anything else. . . ." A judge should not "incorporate his or her personal views in deciding issues of this sort," he said, adding, "If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law."
Biden complained that Roberts was refusing to share his understanding of the law and that "we are rolling the dice with you, judge."
At another point the senator said, "you've told me nothing" and lamented "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." Lawmakers and the president must answer questions on what they believe to get elected, while a Supreme Court nominee "doesn't have to tell us anything," Biden said. "It's okay, as long as he is -- as you are -- a decent, bright, honorable man, that's all we need to know."
Roberts replied, "You make the point that, 'We stand for election and we wouldn't be elected if we didn't tell people what we stand for.' Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, 'This judge should go on the bench because these are his or her positions and those are the positions they're going to apply.' Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court."
In response to a question from Sen. Jon Kyl (R-Ariz.), Roberts said, "I do think I've been more expansive than most nominees" to the Supreme Court in previous confirmation hearings.
Sen. Mike DeWine (R-Ohio) advised Roberts not to "forget to be John Roberts the man" when he becomes chief justice. "We need you to bring to the court your compassion" and commitment to equal justice, DeWine said.
Sen. Dianne Feinstein (D-Calif.) drew from Roberts a statement that he does not think the president "deserves total deference" in any court case. "We don't defer to the executive. We don't defer to the legislature," Roberts said.
Sen. Jeff Sessions (R-Ala.) raised the decision today in which a federal judge in California ruled that reciting the Pledge of Allegiance in public schools was unconstitutional. In a case involving two families represented by an atheist who lost a prior Supreme Court case on the issue, U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates the right of school children to be "free from a coercive requirement to affirm God."
Asked if he were "concerned about the inconsistencies of these opinions," Roberts said, "I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free exercise clause could be clearer."