Roberts Gains Respect, if Not Converts
“I’m not an ideologue,” John G. Roberts Jr. told the Senate Judiciary Committee on Thursday. And with that comment, he aptly summarized the case he made for himself during four days of hearings on his nomination as the Supreme Court’s chief justice.
Based on his self-portrait, the Roberts court would not be the place where those in search of new legal rights and protections would find them. Nor, however, would the high court under his leadership press a conservative counter-revolution.
Roberts, in short, presented himself as a mainstream conservative, not a right-wing activist who was eager to roll back the liberal decisions of decades past on civil rights, women’s rights and the environment.
He said he was devoted to precedent and stability in the law, even if that meant upholding rulings he may have disagreed with years ago.
He said he aspired to be a “modest” judge, someone who followed the law and did not promote a political agenda.
Thursday, the committee intends to vote on whether to recommend Roberts’ confirmation. Its recommendation is virtually assured because Republicans hold a 10-8 advantage on the panel.
He then likely will be confirmed by the GOP-controlled Senate, perhaps during the last week of September.
In his testimony, Roberts distanced himself from the “originalist” approach followed by Justices Antonin Scalia and Clarence Thomas, which looks back to the history of the 18th century to decide the meaning of the Constitution. Roberts said he believed the guarantees of liberty and equal protection should be interpreted broadly in light of modern times and changing conditions.
And when asked about the president’s power -- a concern voiced by liberals troubled by the bold moves of the Bush White House -- Roberts repeatedly invoked the 20th century’s most important ruling limiting the chief executive -- the 1952 case involving Harry S. Truman’s seizure of the steel mills during the Korean War.
His words reassured some listeners.
“What we learned generally about him is that, taken at his word, he is not somebody who is going to be a revolutionary on the bench, which I find comforting,” said Douglas T. Kendall, executive director of the Community Rights Counsel, a law firm that specializes in environmental cases.
Roberts’ confident performance during this week’s hearings certainly did not undercut his cause. His calm manner and encyclopedic grasp of the law won him bipartisan praise.
“You have an amazing knowledge of the law,” Sen. Charles E. Schumer (D-N.Y.) told him. “You may very well possess the most powerful intellect of any person to come before the Senate” for confirmation to the Supreme Court.
Schumer and other Democrats, however, voiced concerns about Roberts’ heart.
Roberts refused their repeated invitations to characterize himself as a big-hearted judge who would give the benefit of the doubt to minorities or the poor. Instead, he said his duty was follow the law as he saw it.
“If the Constitution says that the little guy should win, the little guy is going to win in court before me,” Roberts told Sen. Richard J. Durbin (D-Ill.) “But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution.”
Roberts’ testimony did not sway the liberal groups and civil rights organizations that have opposed him. They noted he refused to state his opinion on contemporary disputes such as abortion rights, or controversial past decisions such as the ruling that stopped the vote recount in Florida in 2000 and ensured that George W. Bush would become president.
Roberts also stood behind most of the sharply worded memos he wrote as a young conservative in the Reagan administration.
The memos opposed several civil rights initiatives of the time, and sometimes did so in a mocking tone.
One memo, for example, referred to illegal immigrants as “illegal amigos.”
Another memo strongly opposed an expansion of the Voting Rights Act, which allowed lawyers to challenge voting systems or electoral districts that weakened the voting power of blacks or Latinos. The 1982 law is credited with vastly increasing the number of minority officeholders.
When Democrats repeatedly broached the subject of these memos, Roberts repeatedly responded that he was a staff lawyer who was carrying out the policies of the Reagan White House.
Pressed by Sen. Edward M. Kennedy (D-Mass.) on the disputed provision in the Voting Rights Act, he said he did not now think it was “constitutionally suspect.”
His cautious answers to the questions about the memos caused some to doubt he had changed his opinions.
His take on the Voting Rights Act “makes me think he likely still holds these views,” said Richard L. Hasen, a voting rights expert at Loyola Law School in Los Angeles. “The tone of the memos is a tone of indignation.”
At times, Roberts succeeded in turning the senators’ questions back on them.
Sen. Patrick J. Leahy (D-Vt.) asked Roberts why he argued in 1991, as deputy solicitor general in the administration of George H.W. Bush, that a schoolgirl who was a victim of sexual harassment at her Atlanta-area high school could not sue the school district for damages in federal court.
Leahy told Roberts he could “actually bring justice” by allowing her and others like her to sue. He asked Roberts why he did not take that view.
The reason, Roberts replied, was that Congress did not include in the law a provision that would allow people to sue. The law in question, Title IX of the education code, said schools and colleges that received federal money had to treat girls and boys equally. It did not say, however, whether private lawsuits were authorized.
Over and over again, Democrats cited such examples to question whether Roberts had a big heart.
Roberts said the issue was the law, not his heart.
“If Congress would simply spell it out in the legislation,” he said, there would be no doubt victims could sue.
“All of those cases arose because Congress did not address the question. All Congress has to do is write one sentence” authorizing private lawsuits, he said.
“I became a lawyer because I believe in the rule of law,” Roberts said in summarizing his case. “I would hope you’d look at my briefs and my arguments before the Supreme Court and conclude that’s a person who respects the law, respects the court and will the approach the law in a similar way as a judge.”