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The Senate Judiciary Committee’s second day of hearings into the nomination of John Roberts Jr. for chief justice was marked by withering criticism by some Democrats upset over Roberts’ refusal to disavow comments he made while a Justice Department lawyer and as an assistant White House counsel. Roberts also very carefully — and repeatedly — refused to answer questions Tuesday about any specific cases, pointing to what he said was the “precedent of prior nominees.” Said Roberts to Senate Judiciary Chairman Arlen Specter (R-Pa.), “That is something where I will have to draw the line.” In the course of his testimony, Roberts insisted that language in several memos concerning civil rights and discrimination issues that he wrote during the 1980s, when he was a special assistant in the Justice Department and an assistant White House counsel, was simply the work of a diligent staffer. “I was a staff lawyer; I didn’t have a position,” he told Sen. Joseph Biden (D-Del.), whose exchange with Roberts was the most spirited in the morning round of questioning. “His answers are misleading,” Biden said at one point to Specter, who had pointedly asked Biden to let Roberts answer his questions. “With all due respect, they are my answers, and they are not misleading,” Roberts shot back, shedding, if only briefly, his characteristic coolness. Specter, who led off the questioning, dived straight into the abortion debate, with what he called “the central issue of Roe v Wade and a woman’s right to choose.” But rather than ask Roberts directly whether he would vote to overturn Roe, Specter pressed Roberts on his views of precedent and how he would apply them. “I do think it is a jolt to the legal system when you overrule a precedent,” said Roberts, seated alone before the 18 Judiciary Committee members, at a table draped with a red cloth. Roberts added that overturning precedent was something that would never take place in a vacuum. “It’s not enough if you may think the prior decision is a wrong decision,” he told the committee. “That doesn’t answer the question, that poses the question.” Specter did probe Roberts’ views on privacy — one of the few ways senators have of getting a sense of a position on Roe, without an explicit answer on the case itself. “Personal privacy,” said Roberts, “is a component of liberty protected by the due process clause, going back 80 years.” Roberts’ comments on Roe did not appear to shake the support of at least some conservatives who oppose the decision. Gary Bauer, president of the conservative American Values, said that based on Roberts’ comments Tuesday, “I don’t believe either side can come to any conclusion” about whether he would vote to overturn Roe. He added, “I’m willing to take a chance.” In one of his more definitive answers Tuesday, Roberts took sides in an ongoing debate within the Court over the use of foreign laws and precedents in deciding cases. Sen. Jon Kyl (R-Ariz.) raised the issue, citing last spring’s decision Roper v. Simmons, in which Justice Anthony Kennedy invoked worldwide trends in support of his vote to strike down the death penalty for those who were under 18 when they committed their crimes. Roberts said the use of foreign precedent troubled him because “with foreign law, you can find anything you want.” Given the wide range of global laws and norms, Roberts likened the use of foreign law to “looking out on a crowd and picking out your friends.” He also said it violates democratic principles, because it makes use of material that was written and decided by authorities who are not accountable to U.S. voters. Roberts’ position would place him strongly alongside Justices Antonin Scalia and Clarence Thomas, and at odds with justices such as Kennedy, Sandra Day O’Connor, and Stephen Breyer, who have said foreign materials are useful, though not dispositive. Roberts was less decisive on an issue that media organizations were hoping he would be asked about: cameras in the Supreme Court. The Court has repeatedly resisted efforts to allow broadcast coverage of its proceedings. “It’s not something I have a settled view on,” Roberts said in answer to a question from Sen. Russ Feingold (D-Wis.). “I certainly understand the interest.” He said that in the past the issue has been referred to the whole Court, not just the chief justice, and he indicated he wanted to hear from other justices before taking a position. Again and again, Roberts returned to familiar themes throughout the full day of hearings: that courts should judge, not legislate; that the right to be left alone is a fundamental American right, even though it is not specifically mentioned in the Constitution; that he would not answer specifics about any particular cases; and that his religious beliefs would not play any role in his decision-making. “I do know this, that my faith and religious beliefs don’t play a role in my judging,” Roberts said in response to questions from Sen. Dianne Feinstein (D-Calif.) about his impartiality. “When it comes to judging, I look to the law . . . I don’t look to the Bible.” Roberts also sidestepped a question from Feinstein about whether the federal courts should become involved in end-of-life decisions. His response: “An abstract opinion [on that subject] that would pre-judge that case is inappropriate.” Feinstein quizzed Roberts on another memo, this one from July 31, 1985, in which Roberts noted that “Some might question whether encouraging homemakers to become lawyers contributes to the common good . . .” Roberts insisted that the point of the memo was a humorous attempt to point out that there were too many lawyers, an idea, he noted at the hearing, “that goes back to Shakespeare. . . . It had nothing to do with homemakers.” Much of Roberts’ discussion with Sen. Patrick Leahy (D-Vt.) focused on the nominee’s views on the balance between the president and Congress concerning war powers. Leahy cited a Reagan-era memo in which Roberts raised a red flag over a provision in a proposed law that would have given Congress the power to declare when a war was over — for the purposes of allocating veterans’ benefits. Leahy, his voice rising, asked Roberts if his memo meant that he felt Congress did not have the power to stop a war. “Senator, you are vastly overreading the memo,” Roberts said, adding that the memo concerned a technical matter and that Congress retained the “power of the purse” in funding wars. By late afternoon some conservative blogs were expressing dismay that Roberts had not been critical of Roe. “If there is a sense of disappointment in the conservative community, it’s more of a dissatisfaction with the state of the law than the nominee,” said Leonard Leo, the executive director of the Federalist Society and a leading conservative voice on judicial nominations, in an interview. In fact, Leo said, “the testimony proffered by Clarence Thomas [on Roe] is not that different.”Advocates on the other side were far more critical.� “How many questions can he avoid answering?” wondered Elliot Mincberg, the legal director at People For the American Way. And Sen. Edward Kennedy (D-Mass.), interviewed outside the hearing room, had his own explanation for Roberts’ insistence on keeping far away from even the remotest comment on a specific case or issue that is likely to come before the Court. “I’ve seen it among candidates before,” said Kennedy, a member of the Senate since 1963. “When they begin to feel they have the votes, they begin to get more and more vague — and we’re seeing it on the Judiciary Committee.” With a 10-8 split on the committee, Roberts does not need any Democratic votes if, as is widely expected, he maintains the support of all 10 committee Republicans.
T.R. Goldman can be contacted at [email protected]. Tony Mauro can be contacted at [email protected].

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