What Questions Will John Roberts Answer?

Confirmation hearings begin Monday for Chief Justice nominee John Roberts. Because the court is so closely divided on certain constitutional questions, and Roberts is known to have disagreed with some of the court's decisions on those issues, the stakes are high. Nina Totenberg looks at some questions that senators are likely to ask Roberts.

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RENEE MONTAGNE, host:

The Senate Judiciary Committee today opens hearings on the nomination of Judge John Roberts to the US Supreme Court. It has been 11 years since the last confirmation hearing. Not since the early 1800s has the Supreme Court gone for such a long period without a vacancy and this is no ordinary vacancy. It is for chief justice. The stakes are high. The court is closely divided on issues ranging from privacy and abortion to separation of church and state to the power of Congress to regulate. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Today's hearing convenes in the historic Senate Caucus Room, scene of some of the most pivotal hearings of modern times: Teapot Dome, Watergate, the Army-McCarthy hearings, Iran Contra and the hearings on the Supreme Court nominations of Robert Bork and Clarence Thomas. The format will provide each senator with more concentrated time for questions than in the past, an opening round of a half-hour for each senator followed by a second round of 20 minutes each and further rounds if senators want more time after that. But this afternoon's event will be more scripted with the 18 members of the committee allowed 10 minutes each for opening statements followed by a formal introduction of the nominee and finally an opening statement from Judge Roberts. Tomorrow, the questioning will begin.

Roberts is hardly a stranger to the hot seat. He's argued 39 cases in the US Supreme Court and is famous for his careful preparation and coolness under fire. Still, the Bush administration has been taking no chances. Roberts has been practicing his performance in mock sessions with Republican lawyers playing the roles of Democratic inquisitors and White House operatives are trying to foresee every problem imaginable. Former Reagan White House Chief of Staff Ken Duberstein shepherded the nomination of David Souter thorough the Senate in 1990 and remembers that Souter at one point wanted to go back to his New Hampshire home where TV cameras had been filming through the windows.

Mr. KENNETH DUBERSTEIN (Former Reagan White House Chief of Staff): I kept asking him, `What don't you want people to see?' And as it turned out, what it was was a book on an end table at the end of the sofa next to a window. And I said, `Do you mind telling me the name of the book?' and I had all these visions of something very scandalous. And with a twinkle in his eye, he said to me, `Well, somebody suggested I buy the autobiography of Robert Bork.' And I said, `David, don't read it until you're confirmed.'

TOTENBERG: Souter, of course, was something of a stealth candidate with a scant written record on the hot-button issues of the day, but Roberts it turns out has a long written record on most of those issues courtesy of his service in the Reagan White House in the early and mid-1980s. Some 70,000 pages of his files have now been released by the National Archives as required by the Presidential Records Act but President Bush has refused to release more recent material from the late '80s and early '90s when Roberts served as the deputy solicitor general in the administration of the president's father. The material that has been released shows Roberts staunchly opposing affirmative action policies, skeptical of any constitutional right of privacy and opposing a wide variety of measures to equalize pay and job opportunities for women. The Roberts files also show him favoring a stringent limit on access to courts for environmental groups and they show him arguing forcefully for the right of Congress to enact legislation striping the courts of jurisdiction on matters from abortion to school busing. Thus, the nominee is bound to be pressed on these and other subjects when he testifies. Jeff Peck served for five years as Democratic counsel on the Senate Judiciary Committee.

Mr. JEFF PECK: I think this is a tricky line for him to walk if he takes the tact that, `Look, that was then. This is now. I was a young kid.' This was a person regardless of his age who was being asked to give advice to very, very senior people in the administration at the Justice Department and one can't simply walk away from those views entirely.

TOTENBERG: The White House and its allies take the position that Roberts should not have to say much about his views maintaining in ads like this one that the confirmation hearings of Judge Ruth Bader Ginsburg set a precedent.

(Soundbite from ad)

Unidentified Man: Judge Ginsburg was confirmed 96-to-3, but she was not required to discuss her personal views on issues likely to come before the court, avoiding even the appearance of prejudging cases, setting an important precedent for future nominees.

TOTENBERG: Hastings Law School Professor Vicram Amar observes, though, that Ginsburg did, in fact, answer a lot of questions about her views and about her past writings.

Professor VICRAM AMAR (Hastings Law School): She ended up saying whether she agreed or disagreed with over 30 prominent contested Supreme Court cases. So I think a kind of sophisticated understanding of the Ginsburg precedent really doesn't provide Roberts the cover that he's going to say it does.

TOTENBERG: Certainly Democratic senators will be anxious to find out how willing Roberts would be to overturn past Supreme Court decisions. The legal doctrine of stare decisis dictates respecting precedent so the law is not constantly changing and Professor Amar notes that the court's basic decisions on the right to abortion and on affirmative action have been reaffirmed repeatedly over the last 30 years.

Prof. AMAR: If stare decisis is going to mean anything, those are the two cases that you have to talk about.

TOTENBERG: Roberts' critics are worried that he will vote to reverse those decisions because he has long opposed them, and Democrats know there is still another court vacancy to fill. Former Democratic counsel Jeff Peck.

Mr. PECK: It's important for members to put a marker down very, very clearly he has to answer the questions to get there. If he doesn't, I think you're going to see a sizeable number of no votes.

TOTENBERG: The unfolding Katrina disaster, however, may well overshadow these hearings and former Reagan White House Chief of Staff Ken Duberstein sees an additional dilemma for the Democrats.

Mr. DUBERSTEIN: After all, every member of the Senate Judiciary Committee, Democratic minority, there is not one who is from a red state. I think that puts an awful big onus on them.

TOTENBERG: The chairman of the Judiciary Committee, Republican Arlen Specter, has a long history of pushing nominees to discuss their views.

Senator ARLEN SPECTER (Republican, Pennsylvania): I've been through nine of these proceedings and have come to the conclusion in the past that the nominees answer about as many questions as they think they have to to be confirmed.

TOTENBERG: But former Reagan Attorney General Edwin Meese says that senators already know plenty about Roberts, having read his papers, briefs and legal opinions.

Mr. EDWIN MEESE (Former Reagan Attorney General): To some extent, you might even think of it as a charade. The hearing itself is really not particularly necessary. It's more of a show than anything else.

TOTENBERG: Senator Patrick Leahy, the Judiciary Committee's ranking Democrat, disagrees, saying that this is the Senate's, quote, "one shot."

Senator PATRICK LEAHY (Democrat, Vermont): You're talking about a lifetime appointment on the Supreme Court. If a person's going to sit there long after President Bush is gone, long after all the rest of us are gone if he's confirmed, this is the only chance the American people, all American people, have to see what he is.

TOTENBERG: Nina Totenberg, NPR News, Washington.

MONTAGNE: And you can listen to the John Roberts hearings live beginning today at noon Eastern time at npr.org.

This is NPR News.

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