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Published: Sunday, 9/4/2005

Senate panel to look into Roberts past

BY MAEVE RESTON
BLOCK NEWS ALLIANCE

WASHINGTON In the ornate Russell Caucus room where Congress has pursued many historic investigations from the Teapot Dome scandal to Watergate to Iran-Contra the first confirmation hearings for a U.S. Supreme Court nominee in 11 years will begin Tuesday before the Senate Judiciary Committee.

So far, Judge John Roberts path toward confirmation has been surprisingly clear of obstacles. Even the Senate Democratic leader confessed he was relieved when President Bush announced his choice to replace retiring Justice Sandra Day O Connor back in July.

And while a number of liberal groups have announced their opposition to Judge Roberts based on some of his past viewpoints, there has been little debate over the legal credentials of the 50-year old Harvard Law School graduate who has argued 39 times before the Supreme Court. Not one of the 44 Democrats in the U.S. Senate has publicly announced they will vote against Judge Roberts, who was confirmed by the Senate to serve on the U.S. Court of Appeals for the D.C. Circuit two years ago.

But few in Washington are ruling out the possibility of considerable drama during Judge Roberts confirmation hearings, particularly since many conservatives are convinced he is the fulfillment of Mr. Bush s aim to find a nominee in the mold of Justices Antonin Scalia and Clarence Thomas. Judge Roberts would replace the most-frequent swing vote on a court that has handed down nearly 200 5-4 decisions over the past decade.

Conservatives have vowed to get Judge Roberts confirmed, and they see his nomination as a step toward cracking down on what they see as the liberal judicial activism of lower courts on abortion, property rights, gay marriage, and other divisive issues. Many liberal groups have come out in opposition to Judge Roberts for the same reason, reminding Americans that the Supreme Court appears to be only two votes away from overturning the Roe vs. Wade decision that legalized abortion.

Whatever the category of political storm that ensues this week over Judge Roberts nomination, Pennsylvania s senior senator, Arlen Specter, will be at its epicenter.

Once the Senate Judiciary Committee s most reliable swing vote, Senator Specter rose to the post of chairman earlier this year and has vowed to shepherd Judge Roberts through fair and dignified hearings and an up-or-down vote by the full Senate a job that will require him to keep a tight rein on a committee that includes some of the Senate s most ideological members.

Most of the Judiciary Committee s other Republicans there are 10 in all have said little about questions they will raise with Judge Roberts.

Texas Sen. John Cornyn, a former state Supreme Court Justice, made it clear before leaving for the August recess that he would review Roberts record mainly to defend the nominee. Former Senate Judiciary Chairman Orrin Hatch of Utah often has played that role with previous Republican judicial nominees and is expected to do so again.

The only Republican senators who have shown shades of skepticism about Judge Roberts are the committee s most junior member, Oklahoma Sen. Tom Coburn and its most conservative member, Kansas Sen. Sam Brownback, a possible presidential contender in 2008. Both are fierce opponents of abortion rights who would like Judge Roberts to indicate he would vote to overturn Roe vs. Wade.

In a recent interview with the editorial board of the Wichita Eagle, Senator Brownback said Judge Roberts looks pretty good, but added that it was important to trust but verify.

During the August recess, a number of the committee s eight Democrats also have fleshed out their concerns in speeches, newspaper opinion articles, and, in at least one case, by writing a letter to Judge Roberts. They also have divvied up areas of constitutional law that each senator will probe during question-and-answer rounds.

The committee s ranking Democrat, Vermont Sen Patrick Leahy, along with California Sen. Dianne Feinstein and New York Sen. Charles Schumer, have agreed with Senator Specter in saying that the interstate commerce clause will be among the most important issues Judge Roberts must address during his confirmation hearings.

In a speech to the Los Angeles County Bar Association on Aug. 24, Senator Feinstein noted that the commerce clause and the 14th Amendment have been used as a primary source of congressional power to address social issues, environmental issues. She complained that the Rehnquist court has reshaped

and restricted congressional authority under these provisions. If this historic shift continues, the court could significantly restrict the ability of Congress to address nationwide issues with federal legislation that the people s elected representatives decide are necessary.

As the committee s lone female senator, Senator Feinstein also has said she will ask Judge Roberts about women s rights, including abortion. In her Aug. 24 speech, she said it would be very difficult for her to vote to confirm someone to the Supreme Court whom I knew would overturn Roe and return our country to the days of the 1950s.

Many committee Democrats say the memos from Judge Roberts stint in the Reagan administration have raised questions about his views on civil rights, sex discrimination, and the Voting Rights Act, issues on which Sen. Edward Kennedy of Massachusetts is expected to be the Democrats main inquisitor.

In an opinion piece for the Washington Post, Senator Kennedy said that as a young lawyer Mr. Roberts repeatedly advanced narrow interpretations that would have undermined landmark and hard-won laws Congress passed to prohibit discrimination.

Whether he still holds the views he expressed in the 1980s is a critical question, Senator Kennedy wrote, noting that is one reason why the committee still seeks the release of documents related to Judge Roberts role as the top deputy in the solicitor general s office during the administration of George H.W. Bush. Those documents have been withheld by the Bush administration.

Republicans have lined up two witnesses from the U.S. Commission on Civil Rights to defend Roberts on those issues.

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Maeve Reston is a Washington bureau reporter for the Post-Gazette.



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