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Published: Sunday, 9/18/2005

Experts split over Roberts' testimony

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - Long before chief justice nominee John Roberts' testimony before the Senate Judiciary Committee last week, liberal groups and some Democratic senators were suspicious of Judge Roberts because of President Bush's praise for the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.

After the hearings, some liberal groups said they were still worried that Judge Roberts would follow in the judicial footsteps of Justices Scalia and Thomas. The abortion-rights group NARAL Pro-Choice America said that Judge Roberts' testimony reminded them of Justice Thomas' statements under oath 14 years ago.

"While Roberts wanted to give the impression he respected the right to privacy and the precedent of Roe vs. Wade, his answers look dangerously similar to the responses Clarence Thomas gave senators during his confirmation hearings 14 years ago," NARAL said. "Thomas also gave grandiose remarks about respecting precedent and the right to privacy during his confirmation hearings. One year later, Justice Thomas voted to overturn Roe vs. Wade."

But many, if not all, legal observers believe Judge Roberts offered reason to hope - or fear, depending on one's point of view - that he will not be a Scalia or Thomas clone. They cite his comments about the respect owed to precedent, his embrace of a right to privacy as part of constitutional "liberty," and his insistence that the Supreme Court was being faithful to the framers' intent when it adapted the Constitution's "broad terms" to changing conditions.

"Roberts did in many respects distance himself from Scalia and Thomas," University of Pittsburgh law professor Arthur Hellman said. "I think that came through most when he talked about precedent."

Mr. Hellman noted that Judge Roberts offered an elaborate litany of the factors he would consider in deciding whether to overrule a previous decision - including the fact that public expectations had grown around it - and made it clear that a belief that a precedent was wrongly decided in the first place is not sufficient reason to repudiate it.

Judge Roberts also suggested that weight must be given to the fact that the Supreme Court reaffirmed the "essential holding" of Roe in the 1992 case of Planned Parenthood vs. Casey.

"One of the most interesting things about the hearings was the discussion of the precedent about precedent, the notion that there is a jurisprudence of stare decisis about when you overrule precedent and when you don't," Mr. Hellman said.

Although he noted that Judge Roberts also mentioned decisions in which the court overturned precedents, Mr. Hellman said the nominee's comments augured well for the preservation of abortion rights. "I would predict with a very high level of confidence that he would not vote to overrule Roe vs. Wade," Mr. Hellman said.

Abortion aside, Michael Vatis, a Washington attorney who served as a law clerk for the late Justice Thurgood Marshall, also was struck by differences between Judge Roberts' comments and the approach taken by Justices Scalia and Thomas.

"In the way he described his approach, he gave us a sense of somebody who would be much closer to the late Chief Justice [William] Rehnquist than to Thomas and Scalia," Mr. Vatis said.

"Thomas and Scalia have what they describe as a very coherent judicial philosophy. Scalia describes himself as an 'originalist' in that he interprets the Constitution almost entirely on what he thinks the framers intended in certain clauses. Roberts clearly said that that was not his approach because he doesn't think that gets you very far with some of the more generally worded constitutional amendments or sections of the original Constitution."

"Even before the hearings, Roberts said that he doesn't have one overriding judicial philosophy," Mr. Vatis added. "He will look at the founders' intentions, he will look at precedent, he will look at a variety of different factors. That is a more conventional mainstream taken by the majority of justices and it is certainly more consistent with Rehnquist and [Sandra Day] O'Connor than with Scalia and Thomas."

Not all legal observers are so sure that Judge Roberts' testimony foretells a significant split with Justices Scalia and Thomas.

Eugene Volokh, who teaches constitutional law at UCLA law school, said that Judge Roberts' remarks about the importance of precedent were not surprising. "Everybody believes in that to some extent," Mr. Volokh said, "though Justice Thomas is most willing to reverse precedent in constitutional cases, considerably more willing than Justice Scalia. Even Thomas believes in precedent because you can't run a court system without some degree of reliance on precedent; otherwise there would be too many cases challenging the established rule of law. The question is one of degree."

As for whether Judge Roberts would be a clone of Justices Thomas and Scalia, Mr. Volokh makes two points.

First, Mr. Volokh said, Justices Scalia and Thomas differ from each other, and not only on the weight that they give precedent. "Justices Scalia and Thomas generally vote the same way, but not always."

Second, he said, every justice is unique. "I'm sure Roberts will be different from Justice Scalia," Mr. Volokh said. "I'm sure also that he'll be somewhat different from his former boss, Chief Justice Rehnquist. What we really can't know from his answers at the hearings is how different he'll be."

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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