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Eliciting praise for his intellectual firepower from one of his sharpest Democratic critics, Judge John Roberts Jr. concluded his time before the Senate Judiciary Committee on Thursday by declaring that he was not an ideologue and defending his three days of testimony as both “fully expansive” and “fully responsive.” Roberts noted that despite only two years spent as a federal appeals court judge, he has written 50 opinions, telling Sen. Charles Schumer, D-N.Y.: “I don’t think you can read those opinions and say that these are the opinions of an ideologue. And you and I agree that’s not the sort of person we want on the Supreme Court.” Schumer, in a third and final round of questioning, called Roberts’ legal knowledge and calm and precise presentation before the committee a “tour de force.” But he said he still had questions about Roberts’ ability to “truly empathize” with the less fortunate. “It didn’t seem much, for instance, to concede that the wording ‘illegal amigos’ was unfortunate, yet you refused to say so,” Schumer told Roberts, referring to a 1983 memo Roberts wrote to White House Counsel Fred Fielding, in which he used that term while referring to an upcoming presidential interview with a Hispanic newspaper. Schumer, like almost all of the committee’s eight Democrats, criticized Roberts’ refusal to comment on any issue that might come before the Court. “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 met the ear that afternoon,” Schumer said. Still, Schumer, considered among the most liberal of committee Democrats, professed to being conflicted about whether to vote to confirm Roberts, and would not predict how either he or his colleagues would vote during the Sept. 22 committee meeting. After two lengthy days of interrogations, Thursday’s session was essentially cleanup time for the Democrats, several of whom besides Schumer still wanted to question the witness. It was clear, however, as had been true since the first day of questioning, that Roberts was going to remain a disciplined nominee, rarely commenting on any case or issue that might one day appear before the Court. But as in Wednesday’s hearing, in which Roberts did reveal some slivers of his legal thinking, Thursday’s session also provided a few glimmers of his views, and not merely a recitation of hornbook legal principles about precedent. Queried by Sen. Russ Feingold, D-Wis., Roberts said he was “not in favor now and not in favor then” of eliminating federal habeas corpus for inmates. “People do succeed at that phase,” he said. The day before, Roberts had said he agreed with one part of Grutter v. Bollinger, a 2003 decision that said public universities can take race into account in order to achieve a diverse student body, as long as they don’t use rigid quotas. “You do need to look at the real-world impact in this area,” Roberts said, referring to the decision’s assertion that there was a clear public interest in creating a diverse student body. And Roberts has asserted a constitutional right to privacy, although he was careful to give no indication whether that right to privacy extends to a woman’s right to an abortion. After Roberts finished late Thursday morning, the committee began hearing from a series of six panels totaling 30 witnesses, 15 from each side, each of whom was to give five minutes of testimony. The witnesses ranged from Beverly Jones, a plaintiff in a landmark ruling about the Americans for Disabilities Act, to former Environmental Protection Agency administrator Carol Browner, to civil rights pioneer Rep. John Lewis, D-Ga., to former Solicitor General Charles Fried. “As I read some of the criticism of Judge Roberts, I wonder whether we are talking about the same man,” said Fried, a Roberts supporter. “What I see is a fidelity to the law, not the pursuit of an agenda.” Other witnesses, however, were scathing in their remarks. “Bork by accretion,” said Georgetown University Law Center professor Peter Edelman, referring to Judge Robert Bork, whose Supreme Court nomination was defeated in 1987. “I think what it adds up to is far more radically conservative than Judge Bork,” added Edelman, a former Clinton administration official. “Judge Roberts has a vision of judicial restraint that really represents a retreat from the fundamental goal of protecting the rights of Americans through the federal courts,” said Wade Henderson, who heads the Leadership Conference on Civil Rights, in an interview after completing his testimony. Roberts did appear to stumble at least once Thursday, during questioning by Sen. Edward Kennedy, Mass., the committee’s senior Democrat, who quizzed him over language he used in a June 7, 1983, memo to White House Counsel Fielding. In the memo, Roberts made what could be viewed as a disparaging comment about the Equal Opportunity Employment Commission. “I have been unable to confirm that the President promised to abolish the EEOC,” Roberts wrote Fielding, referring to a letter (the sender’s name has been redacted) that noted President Ronald Reagan promised to get rid of the agency. Roberts continued: “We should ignore that assertion in any event, as well as the assertion that the EEOC is ‘un-American,’ the truth of the matter notwithstanding.” Roberts quickly repudiated the view that the EEOC was “un-American,” noting that the expression came from the unnamed correspondent. But his explanation for the final phrase was labored, and Kennedy, for one, wasn’t buying it. Roberts, whose memos and court opinions demonstrate a punctilious writing style, told Kennedy that the phrase did not refer to the words immediately before it. Rather, they referred to the first assertion in the sentence — the claim by the letter writer that Reagan had promised to dismantle the agency — Roberts said. “He hasn’t made a single mistake in grammar,” Kennedy said during a break in the hearing. “I think he’s trying to have it both ways.” The final day of the Roberts hearings was a day of Democratic musings; Republicans, now confident that he will be confirmed, had little to say. Besides Schumer, California’s Sen. Dianne Feinstein, D, also publicly aired her indecision about how she would vote. Sen. Richard Durbin, D-Ill., however, best summed up his party’s feelings about the hearings, and Democrats’ frustration at trying to figure out who Roberts is. Noting that Roberts had provided pro bono advice to those challenging a Colorado anti-gay rights measure before the Supreme Court in 1996, Durbin wondered whether Roberts would have instead represented Colorado if he had been asked. “I think I probably would have,” Roberts responded. Durbin continued: “Where would you draw the line, if you would ever draw the line?” Replied Roberts: “People become lawyers for all kinds of reasons. Civil rights. Environmental protection. Rights for the disabled. You won’t be able to effectively vindicate those rights if you don’t have a rule of law. That’s why I became a lawyer, to promote and vindicate the rule of law.”

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