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Roberts Sees Role as Judicial ‘Umpire’

Times Staff Writer

Judge John G. Roberts Jr., President Bush’s choice for chief justice of the United States, said Monday that he aspired to a humble and limited role as leader of the Supreme Court, more akin to an umpire who calls the balls and strikes rather than the star player who is the center of attention.

“Justices and judges are servants of the law, not the other way around,” Roberts told the Senate Judiciary Committee. “Judges are like umpires. Umpires don’t make the rules; they apply them. Nobody ever went to a ballgame to see the umpire.”

Roberts’ comments came on the first day of his confirmation hearings before the Judiciary Committee. And his short, simple statement showed the qualities that made him a well-regarded advocate before the Supreme Court as a lawyer, both for the government during the administration of President George H.W. Bush and in private practice.

He spoke directly to the senators and without notes. And he used the baseball analogy to convey his view that the nation’s highest court should play a more modest role in American government.

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That echoed a theme that had been voiced by the committee’s 10 Republican senators. They complained that the Supreme Court had become a “super-legislature” in recent decades, regularly deciding the most controversial political questions of the day. They said the hard political questions should be decided by elected officials, and Roberts indicated that he agreed with them.

A major divide among committee members became clear as several of the panel’s eight Democrats said they intended to question Roberts sharply to discern his views on civil rights and abortion. Republicans, however, argued that court nominees should not be quizzed about specific issues or cases.

Although Monday’s opening session took place in the grand hearing room in the Russell Building that was the site of earlier confrontations over the Supreme Court nominations of Robert H. Bork in 1987 and Clarence Thomas in 1991, it had none of the tension and acrimony of those battles.

At the hearing’s start, Roberts and his wife, Jane, introduced their two children -- Josie, 5, and Jack, 4. Senators smiled at them like proud grandparents.

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Even as Roberts spoke of a limited role for the court, he also stressed its crucial role in upholding individual rights against the power of the government -- a favorite theme of the Democrats and liberals.

Roberts, who is a federal appellate judge, said that as a lawyer in private practice he was awed to go before the Supreme Court representing a client who was fighting the federal government.

“Here was the United States, the most powerful entity in the world, aligned against my client. And yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law,” he said.

“That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men,” he said.

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Roberts recalled President Reagan’s frequent references to the Soviet Constitution and its list of rights granted to the people. “Those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights,” he said. “We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.”

Roberts, 50, was nominated a week ago to succeed the man he had worked for as a clerk at the Supreme Court, Chief Justice William H. Rehnquist, who died Sept. 3. Initially, Bush nominated Roberts for the court in late July to replace Justice Sandra Day O’Connor, who announced her retirement.

If confirmed, Roberts would be the youngest chief justice since John Marshall took office in 1801. Several senators said that given his age and good health, Roberts could serve for decades.

Roberts made his opening statement after all of the Judiciary Committee’s 18 members had made remarks.

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“I come before the committee with no agenda. I have no platform,” he said. “Judges are not politicians who can promise to do certain things in exchange for votes.”

He pledged to “confront every case with an open mind.... I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of the law, without fear or favor, to best of my ability,” he said.

Roberts’ comments addressed the most common complaint conservatives have expressed about the judiciary and the most common concern liberals have voiced about Roberts.

Conservatives often accuse the court of “judicial activism” in the pursuit of liberal causes, such as gay rights and abolition of the death penalty. Liberal advocates, meanwhile, say they are worried that Roberts is a conservative ideologue who would push the court to the right.

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Several Democrats said the effects of Hurricane Katrina showed again the need for an effective and compassionate federal government. They also questioned conservative legal efforts to curb federal authority.

“The powerful winds and floodwater of Katrina tore away the mask that has hidden from public view that many Americans ... are left out and behind,” said Sen. Edward M. Kennedy (D-Mass.) “As one nation under God, we cannot continue to ignore the injustice, the inequality and the gross disparities that exist in our society.”

To win his support, he said, Roberts must show that he would support civil rights and the pursuit of equality.

Sen. Dianne Feinstein (D-Calif.) said she was concerned about Roberts’ views on women’s rights and abortion.

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Recalling the days before the court’s 1973 decision in Roe vs. Wade, which struck down state laws barring abortion, Feinstein said that as a college student, she saw friends collect money to send a young woman to Tijuana to end a pregnancy. She said she knew another young woman who ended her life after she became pregnant.

“I don’t want to go back to those days.... It would be very difficult for me to confirm someone to the Supreme Court whom I knew would overturn Roe v. Wade,” she said.

Republicans said Roberts should not be pressed to spell out his views on current legal controversies such as abortion.

“Don’t take the bait,” said Sen. John Cornyn (R-Texas). “Do exactly the same thing every nominee -- Republican or Democrat alike -- has done. Decline to answer any question that you feel would compromise your ability to do your job.”

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Sen. Lindsey Graham (R-S.C.) said Bush’s nominee deserved to be confirmed because he has the intelligence and temperament for the job. Disagreement with his conservative philosophy is not reason enough to oppose him, Graham argued.

“Elections matter. The president won,” Graham said. “He told us what he was going to do, and he did it” -- nominate a conservative to the court.

After Monday’s session, committee chairman Sen. Arlen Specter (R-Pa.) said he was impressed by Roberts’ 6 1/2 -minute statement and his references to baseball.

“I thought it was succinct [and] to the point,” Specter said. “He had his pulse right on listening to America on the baseball analogy. [The umpire] doesn’t make the rules. He calls the balls and strikes.”

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Barring a surprise during the hearings, Roberts’ confirmation by the full Senate seems likely. But it is unclear how many Democrats on the Judiciary Committee -- most of whom belong to the party’s liberal wing -- will support him.

Few of the committee members tipped their hands Monday. Sens. Charles E. Schumer (D-N.Y.) and Richard J. Durbin (D-Ill.) said they were waiting to see whether Roberts would answer their questions.

Sen. Joseph R. Biden Jr. (D-Del.) came closest to saying he would oppose Roberts’ nomination.

“Judge, if I looked only at what you’ve said and written in the past, I’d feel compelled to vote no,” he said.

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The senators this morning are to begin questioning Roberts. They plan to question him at least through Wednesday.

The White House and Senate Republicans hope that the Senate will hold a confirmation vote on Roberts during the last week of September so that Roberts could lead the court when it opens its term on the first Monday in October.

*

(BEGIN TEXT OF INFOBOX)

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‘Judges Are Like Umpires’

HEARING EXCERPTS

Excerpts from Judge John G. Roberts Jr.'s remarks, from a transcript provided by Federal News Service:

“My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.

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“Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench....”

“Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment: If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

“I think all of us retain from the days of our youth certain enduring images. For me those images are of the endless fields of Indiana stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land....”


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