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The Roberts Hearings’ Final Day

September 15, 2005 at 12:00 AM EDT

KWAME HOLMAN: Several Judiciary Committee Democrats who were unsatisfied with answers Judge John Roberts gave over the previous two days convinced Chairman Arlen Specter to allow them a third and final round of questioning this morning. While Republicans largely chose not to participate, Democrats made clear their reservations about confirming Judge Roberts who, at age 50, could shape the high court for decades to come. New York’s Charles Schumer:

SEN. CHARLES SCHUMER: Many of us on this committee, probably every one of us, some more than others, has been wrestling with how to vote on your nomination. I think my colleague from Delaware was on to something when he called this a roll of the dice. But this is a vote on the Chief Justice of the Supreme Court. 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.

So now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be? Will you be a truly modest, temperate careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly? Will you be a very conservative judge who will impede congressional prerogatives, but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve?

SEN. DIANNE FEINSTEN: I think that Sen. Schumer really summed up the dilemmas and not only he has them on our side. Many of us are struggling with exactly that: What kind of a justice would you be, John Roberts?

JUDGE JOHN ROBERTS: That is the judgment you have to make. I would begin, I think if I were in your shoes, with what kind of judge I’ve been. I appreciate that it’s only been a little more than two years, but you do have 50 opinions. You can look at those.

And Senator Schumer, I don’t think you can read those opinions and say that these are the opinions of an ideologue. You may think they’re not enough, you may think you need more of a sample, that’s your judgment. But I think if you’ve looked at what I’ve done since I took the judicial oath, that should convince you that I am not an ideologue. And you and I agree that that’s not the sort of person we want on the Supreme Court.

KWAME HOLMAN: As they have throughout the week, Democrats again tried a series of strategies to get Judge Roberts to reveal his personal, rather than legal, approach to the law. This morning, Illinois Democrat Richard Durbin cited an answer Roberts gave him yesterday.

SEN. RICHARD DURBIN: Here’s what you said, “My practice has been to take the cases that come to me, and if the other side in that case had come to me first, I would have taken their side.” I want to follow up on this. You were asked the other day about your participation in the 1996 case of Romer versus Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans.

You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation. So I’ll ask you, if the other side had come to you first and said, “Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians,” would you have taken the case?

JUDGE JOHN ROBERTS: It’s a hypothetical question. Of course, I think I probably would have, Senator. If a state, in that case Colorado, had come to me and said we have a case in the Supreme Court, would you defend it, I might — again I can’t answer it without knowing the full details and all that, and I would have to look at the legal issues and I have not and never have presented legal arguments that I thoughts were not reasonable arguments.

SEN. RICHARD DURBIN: When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you were trying, from my point of view, to expand freedom in America. That to me is a positive thing, that’s my personal philosophy and point of view.

But then when you say if the state would have walked in the door first to restrict freedoms, I would have taken them as a client too, I wonder: where are you? Is it important enough for you to say in some instances, I will not use my skills as a lawyer, because I don’t believe that that is a cause that is consistent with my values and belief? That’s what I’ve been asking.

JUDGE JOHN ROBERTS: I had someone ask me in this process, I don’t remember who it was, but somebody asked me: are you going to be on the side of the little guy? You obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. 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.

KWAME HOLMAN: That kind of exchange between the nominee and committee Democrats continued for two hours. The committee then adjourned for a final 30-minute closed session with Judge Roberts. The hearings resumed this afternoon. And in Roberts’ place at the witness table were legal experts, policy advocates and friends of the nominee. Representatives of the American Bar Association explained why John Roberts received their top rating of well-qualified.

But there were differences on the following panel over Judge Roberts’ early writings on civil rights legislation. Democratic Congressman John Lewis of Georgia:

REP. JOHN LEWIS: I was young, too, a few years ago, 24, 25, but I tried to do the right thing. I got in the way and I think Judge Roberts as a young attorney in the administration of President Reagan and others, failed to go with his gut. You don’t come back years later and say “oh no, oh no, this was not my view.” Sometimes you have to fight; sometimes you have to get in the way. If you can’t get in the way when you’re 25 or 30 , you’re not going to get in the way when you’re 50.

KWAME HOLMAN: Former Attorney General Richard Thornburgh, a friend and colleague of Judge Roberts, came to his defense.

DICK THORNBURGH: I don’t think any of us could stand a complete and thorough rummaging through the views we expressed when we were 20 or 25 years old. But most importantly I think is my conclusion based on the basis of my personal knowledge of Judge Roberts that there’s no hostility there to civil rights.

KWAME HOLMAN: Later, Ann Marie Tallman of the Mexican American Legal Defense and Education Fund also took issue with some of Judge Roberts’ writings and decisions.

ANNE MARIE TALLMAN: The writings and decisions of Judge Roberts place him in positions opposed not only equal justice for Latinos but opposed to the positions taken by bipartisan majorities of this Congress and even by the Reagan administration that he served.

If some of John Roberts’ written legal views had been adopted and become settled federal law, thousands of undocumented immigrant children would have been barred from — would have effectively been barred from public schools, left largely illiterate and without hope as members of a permanent under class.

A national system of identification cards might be in place, representing an unprecedented intrusion into the privacy rights of Americans, and placing minorities at much greater risk of racial profiling and discrimination.

KWAME HOLMAN: From Utah State Judge Denise Posse Blanco Lindberg, a Cuban immigrant, the testimony took on a more personal tone.

JUDGE DENISE POSSE BLANCO LINDBERG: I joined Hogan’s appellate practice group and I worked with John on a number of cases following his return to the firm. I remember many cases that we worked on, but I specifically remember his support and guidance during my first solo effort at drafting a brief for a case before the D.C. Circuit. It was a pro bono matter and he willingly spent considerable time reviewing drafts, providing feedback, and that was invariably insightful, helpful and courteous.

He analyzed issues creatively without distorting precedent or stretching a point of law beyond what was permitted by the bounds of law. And on top of that, he was an incredibly nice genuine human being, who was incredibly bright but never arrogant.

KWAME HOLMAN: Chairman Specter kept senators and witnesses within their allotted times to speak, toward his aim of ending the hearings this evening. Senate leaders now expect a final vote on the John Roberts nomination before the Supreme Court term begins on Oct. 3.