Roberts Supports Privacy, Precedent in Hearings

The Senate Judiciary Committee prepares for a second full day of testimony from Supreme Court nominee John Roberts. Roberts on Tuesday said he generally believes in following precedent. He was also unequivocal in embracing a right to privacy. The session Wednesday is likely to once again focus on the issue of abortion.

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The Senate Judiciary Committee today hears a second full day of testimony from Supreme Court nominee John Roberts. If confirmed, Roberts would become the 17th chief justice of the United States and the leader of the federal judiciary. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

As the questioning of Judge Roberts began yesterday, Judiciary Committee Chairman Arlen Specter focused squarely on the issue of abortion. Although a Republican, Specter is an abortion rights supporter and he framed a series of questions in terms of the Supreme Court doctrine of stare decisis, the doctrine that generally dictates following past court decisions. Nominee Roberts said he is generally a believer in following precedent, especially when, as in this case, a decision is reaffirmed by a different set of justices some two decades later. To do otherwise, he said, would upset a system of settled expectations.

Judge JOHN ROBERTS (Supreme Court Chief Justice Nominee): I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough that you may think the prior decision was wrongly decided.

TOTENBERG: And yet, said Roberts, there are exceptions that prove the rule. As an example, he cited the Supreme Court's 1954 decision ending legalized segregation of public schools. Still, by morning's end, Roberts had clearly telegraphed a great hesitation about overruling the Supreme Court's Roe decision on abortion. After a lunch break, however, his tone was decidedly more restrained. Responding to Democrat Dianne Feinstein, he said the Supreme Court's reaffirmation of Roe was just another precedent.

Judge ROBERTS: That is a precedent entitled to respect under principles of stare decisis, like any other precedent of the court, but in terms of a separate determination on my part, whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.

TOTENBERG: And questioned by Republican Senator John Cornyn, he seemed to beat an even more hasty retreat.

Senator JOHN CORNYN (Republican, Texas): And when you said this morning in response to questions about Roe vs. Wade that it is settled as a precedent of the court, you weren't making any commitment one way or another about the outcome of any challenge brought under that or any other legal doctrine, were you?

Judge ROBERTS: No, Senator, and I've tried as scrupulously as possible today to avoid making any commitments about cases that might come before the court.

TOTENBERG: As Senator Herb Kohl observed, underlying the Roe decision is the notion that there's a right of privacy guaranteed in the Constitution. In the 1980s, Roberts expressed doubt that there is any such constitutional right of privacy and he similarly expressed doubt about Griswold vs. Connecticut, the 1965 Supreme Court decision that declared unconstitutional a state law that made it a crime for a married couple to use contraceptives. Yesterday in response to questions from Senator Kohl, though, Roberts was unequivocal in embracing a right of privacy.

Judge ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that.

TOTENBERG: In response to questions from several senators, Roberts, who's Catholic, said that his religion has nothing to do with his judging. Senator Specter asked Roberts if he agrees with President John F. Kennedy's statement, `I do not speak for my church on public matters and my church does not speak for me.' `Yes, Senator,' replied Roberts, `I do.'

For more than nine hours, the nominee and the senators sparred yesterday with Democrats trying to elicit Roberts' views on a wide variety of subjects and Republicans usually but not always playing defense. Both New York Democrat Charles Schumer and Ohio Republican Mike DeWine, for instance, tried without much success to get Roberts to commit to a more deferential role for the court in evaluating laws enacted by Congress, laws that regulate commerce and seek to remedy past discrimination. In the past decade, the court has struck down a number of these laws using a variety of legal rationales. Democrats yesterday focused much of their fire on memos Roberts wrote when he worked in the Reagan administration in the early and mid-1980s. The memos oppose strengthening the Voting Rights Act and opposed a variety of measures to equalize opportunities for women and minorities. Here's Senator Edward Kennedy.

Senator EDWARD KENNEDY (Democrat, Massachusetts): I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings. In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society.

TOTENBERG: But Roberts insisted that the positions in these memos were not his own, rather that he was articulating positions taken by the administration he worked for. Senator Joseph Biden wasn't buying that explanation.

Senator JOSEPH BIDEN (Democrat, Delaware): You said you, quote, "strongly agree." Now when my staff sends me a memo saying, `Senator, I recommend you do the following and I strongly agree,' that usually is a pretty good indication what they think.

Judge ROBERTS: If the view was strongly held, it was because I thought that was a correct reading of the law.

TOTENBERG: Senator Kohl noted that in two memos Roberts wrote at the White House, he clearly expressed his own view that Congress could constitutionally strip the courts of jurisdiction to rule on subjects like abortion, privacy, civil rights and religion. Roberts asserted that when he was at the Justice Department, he'd been asked to articulate that position by Attorney General William French Smith. Later on when he was at the White House, he said he couldn't seem to abandon his argument.

Judge ROBERTS: My memo persuaded me, if nobody else, the attorney general adopted instead the contrary position and I think my views may have had something to do with the proximity to my own advocacy at the time. If I were to look at the question today, to be honest with you, I don't know where I would come out.

TOTENBERG: But Roberts did say that he thinks stripping courts of their jurisdiction is a bad policy regardless of whether it's constitutional. Several Democrats also sought to probe the nominee's views on questions of civil liberties in wartime, but as in so many areas the senators asked about, Roberts said he could not reply since the issues might soon come before the court. Indeed, he even refused to discuss allegations of conflict of interest in a case he ruled on involving military tribunals at Guantanamo Bay, Cuba. The case was before the appeals court that Roberts serves on at the time that Roberts was being interviewed at the White House for a possible Supreme Court vacancy and some critics have maintained he should have recused himself.

Roberts did, however, reply in a limited way to questions from Senator Patrick Leahy about torture and the Bush administration's memo that asserted the president has the power to override domestic and international laws banning torture. The memo, which was in effect for two years, was withdrawn by the administration after it became public.

Senator PATRICK LEAHY (Democrat, Vermont): Do you believe that the president has a commander in chief override to authorize or excuse the use of torture and interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

Judge ROBERTS: Senator, I believe that no one is above the law under our system and that includes the president.

TOTENBERG: Republican Jon Kyl asked Roberts about another question that's riled members of Congress, the reference to foreign law in some Supreme Court opinions. Roberts didn't hesitate for an instant.

Judge ROBERTS: Looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they're finding precedent in foreign law and use that to determine the meaning of the Constitution.

TOTENBERG: Today, the Judiciary Committee will likely return to the subject of abortion. Look for questions this time from conservative pro-life senators who hope that Roberts will lead the court to a reversal of Roe vs. Wade.

Nina Totenberg, NPR News, Washington.

MONTAGNE: For ongoing analysis, audio highlights and a daily podcast of the John Roberts hearings, go to npr.org.

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