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Senators Aim to Solve the John Roberts Puzzle

Times Staff Writers

For the 26-year-old John G. Roberts Jr., the first year of the Reagan administration saw the dawn of a new era for conservatives, and he fit right in. In memo after memo, the young Justice Department lawyer made clear he was a committed conservative, ready to help his bosses reconsider laws on civil rights, abortion, sex discrimination and religion.

More recently, the 50-year-old Judge Roberts has talked about the importance of modesty and stability on the bench. He said that his experience as a judge had been sobering and that it was harder to reach decisions than he had expected.

Starting today, the Senate Judiciary Committee will take up President Bush’s first nomination to the Supreme Court with one overriding question in mind: Who is the real John Roberts?

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Is he a conservative activist who will roll back the court’s liberal rulings on abortion, affirmative action and the separation of church and state, or is he a cautious jurist who will stick with precedent?

Those questions have taken on added importance since Chief Justice William H. Rehnquist’s death Sept. 3. Bush, who initially nominated Roberts to replace retiring Justice Sandra Day O’Connor, tapped him to lead the court the day after Rehnquist’s death.

The chief justice is often described as the first among equals at the court. He has only one vote, the same as the eight other justices. But the chief justice speaks first and leads the discussion in the court’s private conferences.

A skillful, persuasive chief justice could use that opportunity to shape the issues to be decided.

The chief justice also takes the first crack at choosing cases for the high court to consider among the hundreds of appeals that arrive each month. Rehnquist often used this power to set the court’s agenda.

Once the justices have heard a case and cast their votes, the chief justice decides who will write the opinion, as long as he or she is in the majority.

Past chief justices, such as Charles Evans Hughes in the 1930s and Earl Warren in the 1950s and 1960s, used such powers to lead the court. By contrast, Warren E. Burger, who was chief justice in the 1970s and early 1980s, was unable to control the fractured court.

Rehnquist, who became chief justice in 1986, liked to say that it was much easier to lead if you knew the direction you were headed. He might have added that it helped to have at least four devoted followers.

Although he sought to steer the court in a more conservative direction, two of his usual allies -- Justices Anthony M. Kennedy and O’Connor -- refused to follow him on abortion, gay rights and school prayer.

Roberts, though relatively young for the job, is seen as having the intellect and genial personality to effectively lead the court. But where would he like to take it?

The 18-member Judiciary Committee can be expected to probe that question after Roberts, a federal appellate court judge, gives an opening statement today. In the run-up to the Senate hearings, conflicting portraits of him have been on display.

Liberal groups have pointed to the record of the young Roberts during his time as a lawyer in the Reagan and George H.W. Bush administrations, when he appeared to relish the changing political climate.

“This is an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered,” he wrote in 1981.

He opposed affirmative action programs as quotas. He protested an expansion of the Voting Rights Act, saying it could “lead to a quota system in electoral politics.” He urged an end to “forced busing” for school desegregation, and supported a move in Congress to strip the federal courts of jurisdiction over school prayer.

As a lawyer in the administration of the current president’s father, he urged the Supreme Court to overturn the Roe vs. Wade ruling that established abortion rights.

He also said state inmates on death row were not entitled to a new hearing in federal court even if newly discovered evidence indicated that they were not guilty of the crime.

He saw little to like in the landmark Title IX law that gave females equal rights in schools and colleges. Roberts said the law should cover only the college departments that received federal funds, not, for example, the athletic programs. Congress disagreed.

Roberts also went to the Supreme Court to argue that girls who were victims of sexual abuse by teachers, coaches or school officials could not sue the school for damages. He lost unanimously.

Civil rights groups, women’s rights advocates and an array of liberal interest groups said Roberts’ record persuaded them to oppose his confirmation to the high court.

“Roberts had been a committed advocate for narrowing civil rights law,” said Theodore Shaw, president of the NAACP Legal Defense Fund. “Those were his views then. The question is whether they are his views now.”

Many conservative supporters hope they are.

But others who have worked closely with Roberts say the portrait of him as a brash ideologue is out of date and a caricature.

They recalled a lawyer who, while in private practice during his 40s, was modest and open-minded, willing to lend his help to colleagues arguing in favor of affirmative action and gay rights before the Supreme Court.

In lunch conversations and in the hallways of the law firm where he worked, Roberts rarely voiced a sharply political or ideological view, they say.

A more accurate benchmark, they say, is a speech he gave this year at Wake Forest University in North Carolina on the difficulties as a judge of reaching conclusions when presented with compelling arguments on both sides. He described the process as humbling.

“The tone of that speech ... is much more consistent with the person who I worked with for eight years,” said Gregory Garre, a former law partner of Roberts at the Washington firm Hogan & Hartson.

Other lawyers who have known Roberts in recent years say they are surprised that he was once such a partisan.

“He would not be the guy who you ran into at a cocktail party spouting Republican dogma,” said one lawyer who has been involved in cases with Roberts for more than a decade. “He would be charming, low-key and pleasant to talk to. I viewed him as less of a partisan than you otherwise might conclude in looking at those memos.”

Lawmakers questioning Roberts will probably focus on several issues.

First is the reach of federal power.

Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, said he was upset with some of the Supreme Court rulings in the last decade that struck down laws enacted by Congress. For example, the court in a 5-4 decision in 2000 voided the Violence Against Women Act, which allowed victims of sexual assaults to sue their attackers in federal court. Rehnquist said sexual assaults were not economic in nature, and therefore were not part of Congress’ power to regulate interstate commerce.

Roberts, a former clerk to Rehnquist, cited the same reasoning in questioning whether federal wildlife regulators could protect a “hapless toad” that was endangered and living in a California canyon. Specter wants reassurance that Roberts would not seek to rein in Congress’ lawmaking authority.

Next is the right to privacy and abortion. The Roe vs. Wade ruling in 1973 struck down laws blocking abortions on the grounds that they violated an unwritten “right to privacy” in the Constitution. In memos, Roberts cited the “so-called right to privacy.” Democrats probably will ask what he meant by that phrase.

The government’s role in religion will probably get attention as well. As a Bush administration lawyer, Roberts argued that officials could sponsor prayers or religious displays without violating the Constitution’s ban on an “establishment of religion.” The Supreme Court disagreed, but the justices are closely split on the question.

Besides the specific issues, some legal scholars say the hearings may shed light on what kind of a conservative Roberts is.

“We learned at least back then he was quite conservative. He was even a relative conservative in the Reagan Justice Department, which is saying something,” said Cass Sunstein, a law professor at the University of Chicago.

“We also learned he was really smart, careful, and that he did not hold any irresponsible or reckless positions. He was not a flame-thrower.... It is clear he is not a bombastic person. He hews closely to legal materials.”

John Yoo, a UC Berkeley law professor who served in the George W. Bush administration, said Roberts shared the conservative view that the federal courts should not decide controversial social questions.

“That is the litmus test that distinguishes legal conservatives from liberals: What is the proper role of the courts in deciding contentious, divisive social issues?” Yoo said. “It would be very surprising to see someone who clerked for Rehnquist, who worked for Ronald Reagan, to change from that basic view.”

It’s also quite possible that when the hearings are over, Roberts will remain something of a mystery.

“We have learned a lot about John Roberts the private attorney and John Roberts the public attorney,” said David Alistair Yalof, a professor at the University of Connecticut. “But in the end, that does not necessarily give us any more of a hint or suggestion as to what we will get from John Roberts.”

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(BEGIN TEXT OF INFOBOX)

Judicial code words

As the Senate debates the nomination of John G. Roberts Jr. to the Supreme Court, the air is likely to be thick with rhetoric and code words. Here are some common terms and what they mean:

* Judicial philosophy

Even if senators consider a nominee professionally qualified, they often debate his judicial philosophy. The term is code for political reliability. When Republicans praise a nominee’s judicial philosophy, they often mean they are reasonably certain the nominee will agree with them. When Democrats raise questions about a Republican nominee’s judicial philosophy, they are often expressing fear that the nominee will rule in a politically conservative fashion. Whatever party is in power usually declares that a nominee’s judicial philosophy should not be questioned or considered grounds for rejection. Whatever party is in the minority usually argues the opposite -- that gauging a nominee’s judicial philosophy is a crucial part of gauging their qualifications for the bench.

* Legislating from the bench

The Constitution sets up a balance of power in government: Congress passes laws, the president executes them and the Supreme Court arbitrates any disputes. Conservatives argue that judicial rulings that have the effect of making social policy are an improper intrusion of the judiciary into legislative matters, deriding them as legislating from the bench. They point to Roe vs. Wade, the 1973 Supreme Court decision legalizing abortion nationwide, as a prime example.

* Judicial activism

What both Republicans and Democrats say they fear in a Supreme Court justice. Republicans don’t want judges to be active in making rulings on social policy. Democrats don’t want judges to be active in overturning existing rulings, especially in the areas of civil and reproductive rights.

* Judicial restraint

What both Republicans and Democrats say they want in a Supreme Court justice. Republicans want judges to be restrained on issues of morality and social policy. Democrats want judges to be restrained in narrowing or overturning existing rulings, especially in the areas of civil and reproductive rights.

* Precedent

Also referred to by the Latin term stare decisis (STAIR-ee dee-SIGH-sis), which means to stand by a decision. It refers to the legal notion that the law is consistent over time, and that courts should follow the rulings of judges who came before them. When Democrats ask Republican nominees about their commitment to precedent, they are really asking whether the nominee has any qualms about overturning prior decisions unpopular with conservatives -- in particular, Roe vs. Wade.

* Commerce clause

The language in the Constitution granting Congress the power “to regulate commerce with foreign nations, and among the several states.” The clause has been interpreted to permit Congress to pass much of the landmark civil rights, anti-discrimination and environmental legislation of recent decades, the logic being that those issues transcend state boundaries. Some conservatives feel the clause has been too broadly interpreted and have pursued several recent challenges before the Supreme Court. Liberals believe the current Supreme Court has been trying to narrow interpretations of the commerce clause and, by extension, much of the federal government’s regulatory powers.

* Establishment clause

The phrase in the 1st Amendment that says “Congress shall make no law respecting an establishment of religion.” Liberals generally interpret the establishment clause as calling for separation of church and state. Conservatives generally believe it means the government cannot establish a state religion, but that it permits most public expressions of religious faith.

* Privacy

The word privacy does not appear in the Constitution, and some conservative jurists say that means the Constitution does not guarantee a right to privacy. Other scholars believe a right to privacy is implicit in other guarantees. For instance, the 4th Amendment prohibits “unreasonable searches and seizures”; the 14th Amendment guarantees the right to “due process of the law” before being deprived of rights or property; and the 9th Amendment says that the Bill of Rights should not be read to preclude other, unstated rights. The implied right to privacy was a central rationale for a number of controversial Supreme Court decisions, including the legalization of contraception, abortion and sexual acts between consenting adults, including gays. The debate over whether the Constitution guarantees a right to privacy is often a surrogate for the debate over those decisions.

-- Reported by Maura Reynolds


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