Judge John Roberts returned to the Senate Judiciary Committee hearing room Thursday to answer questions from skeptical Democrats who made clear their reservations about the chief justice nominee’s position on civil rights, affirmative action and other issues that could come before the Supreme Court.
Sen. Charles Schumer, D-N.Y., laid out his and other Democrats’ dilemma. “Many of us on this committee, probably every one of us, some more than others, have been wrestling with how to vote on your nomination,” he said.
“You did speak at length on many issues and sounded like you were conveying your views to us, but when one went back and read the transcript each evening, there was less than had met the ear that afternoon. Perhaps that’s the job of a good litigator, but in too many instances it didn’t serve the purpose of these hearings,” he added.
When Schumer asked what question could the committee pose that would help convince its members that the potential next chief justice was not an ideologue, Roberts answered that the senators should concentrate on the 50 opinions he wrote while on the U.S. Court of Appeals for the D.C. Circuit over the past two years.
“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 look 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,” he said.
Schumer said he has been impressed with Roberts’ ability to think on his feet and answer question after question “without any paper in front of you, without a single aide coming over and whispering in your ear or passing you a note.”
He also complimented him on his modesty, but said it had a troubling aspect: “Yesterday, you said that the decision of Brown v. Board could be described as modest. Brown v. Board was breathtaking. It was wonderful. It reversed 80 years of accepted but bad law, yes. But modest? So I ask myself, could overturning Wickard or Roe also be modest by your definition?”
Roberts continued to answer questions about civil rights and affirmative action. Sen. Edward Kennedy, D-Mass., asked what minorities and other groups of Americans who have faced discrimination in the past could find in his record to assure them that he would not set back the progress they have made toward equal opportunity.
“Senator, there’s a great deal in my background that you could look to in that respect,” Roberts said. He said he believes in affirmative action and has volunteered in a program to help prepare minority students for the rigors of law school.
He said that his work as a lawyer in the Reagan administration could be interpreted as signaling a lukewarm attitude to affirmative action.
“Yes, I was in an administration that was opposed to quotas,” he said, but that did not equate to opposition to affirmative action.
In a back-and-forth with Sen. Dianne Feinstein, D-Calif., he said that he did not always side with corporations in cases involving workers’ rights. A review of his Court of Appeals decisions would demonstrate that, he said.
Democrats continued to try to get Roberts to reveal his personal, rather than legal, approach to the law.
Sen. Richard Durbin, D-Ill., asked how he decided who he would and would not represent as a lawyer. “Where would you draw a line saying I do have principles and values; there are certain things I would not use my legal skills to do because they conflict with those values? If this is just a process, a legal contest, and you’ll play for any team that asks you to play, it raises a question about where would you draw the line if you would ever draw the line.”
Roberts responded that such a question goes to the heart of the role of law in American society. “I think that’s a disparaging way to capture what is, and in fact, an ennobling truth about our legal system that lawyers serve the rule of law above and beyond representing particular clients,” he said.
“I had someone ask me in this process — I don’t remember who it was, but somebody asked me, you know, are you going to be on the side of the little guy? And 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. That’s the oath,” he later added.
The questioning, primarily by Democrats on the committee, continued for two hours and then Roberts gave a 30-minute summary address. Later in the afternoon, senators heard from legal experts, policy advocates and friends of the nominee.
Committee Chairman Arlen Specter, R-Pa., planned to conclude the proceedings Thursday night and vote on the nomination in a week. Since Republicans have a 10-8 majority on the panel and 55 of the 100 seats in the Senate, Roberts’ prospects look good when the full Senate votes, probably on Sept. 26, according to the Associated Press.