Roberts' Answers Frustrate Senate Democrats

The Senate Judiciary Committee could wrap up hearings Thursday on the nomination of Judge John Roberts to be the next chief justice of the United States. After two full days of questioning, Senate Democrats maintained the nominee was not answering questions in a meaningful way.

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The Senate Judiciary Committee could wrap up hearings today on the nomination of Judge John Roberts to be the next chief justice of the United States. After questioning Roberts for the past two days, the committee has agreed to vote next week and to send the nomination to the Senate floor for a vote by the end of the month. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Roberts' public testimony this morning will be followed by a closed-door session to allow senators to question the nominee about information in his FBI file. These closed-door sessions began after the 1991 post-confirmation hearing disclosure that the committee had failed to investigate allegations of sexual misconduct against then-Judge Clarence Thomas when he was nominated to the Supreme Court.

Roberts has had a smoother sail than Thomas ever did. In his first day of testimony, he faced questions from the right and left about abortion. Yesterday, he faced questions from Democrats about end-of-life decisions. Senator Joseph Biden of Delaware led off.

Senator JOSEPH BIDEN (Democrat, Delaware): Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue on a life-support system?

Judge JOHN ROBERTS (Chief Justice Nominee): Well, senator, I can't answer that question in the abstract because...

Sen. BIDEN: It's not abstract, that's real. Can any law trump a fundamental right to die? Not to commit suicide, a right to decide `I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube.' And the idea that a state legislature could say to my mom, `Your father wants the feeding tube removed, he's asked me, and the doctors heard it and the state legislature's decided that, no, it can't be removed.' Are you telling me that's even in play?

Judge ROBERTS: There is legislation that states have passed in this area that governs that and there are claims that are raised that the legislation is unconstitutional. And...

Sen. BIDEN: Fundamental--so you've told me nothing, Judge, as if the public doesn't have a right to know what you think about fundamental issues facing them.

TOTENBERG: Roberts was unruffled, telling Biden that he simply could not comment because cases involving end-of-life decisions are now and will in the future be before the Supreme Court. California Senator Dianne Feinstein wasn't satisfied.

Senator DIANNE FEINSTEIN (Democrat, California): What has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because you're a very young man to be chief justice. You could be chief justice for 40 years.

TOTENBERG: And Feinstein, like Biden, pursued the question of individual rights at the end of life.

Sen. FEINSTEIN: I've been through two end-of-life situations, one with my husband, one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation. Let me ask this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do?

Judge ROBERTS: Obviously, you look to the views of the person involved, and if it's a loved one, you are the one who is in a position to make sure that you understand their views.

Sen. FEINSTEIN: All I'm saying is you wouldn't want the government telling you what to do.

TOTENBERG: Senator Edward Kennedy was more successful in his line of questioning about the Voting Rights Act. When nominee Roberts served in the Reagan administration, he wrote memos opposing a strengthening of the act and suggested that measures that subsequently were enacted into law were, quote, "constitutionally suspect." Senator Kennedy.

Senator EDWARD KENNED (Democrat, Massachusetts): This is the backbone of effective voting in our country and a society, and I think the American people are entitled to know whether you believe or suspect that that particular provision, which has passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound.

Judge ROBERTS: I have no basis for viewing it as constitutionally suspect.

TOTENBERG: Democrat Russell Feingold returned to another subject, Roberts' participation in an appeals court decision involving a challenge to the Bush administration's conduct of military tribunals at Guantanamo Bay, Cuba. Roberts joined a unanimous ruling issued July 15 in favor of the administration. But in his Senate questionnaire, he revealed that on April 1st, just six days before the case was argued, he'd been interviewed by Attorney General Alberto Gonzales for a possible Supreme Court vacancy. Legal ethics experts have been divided over whether Roberts' participation in a case at the time he was being considered for a Supreme Court vacancy was proper. When Senator Feingold sought to question the nominee about the matter two days ago, Roberts refused to answer any questions. But yesterday, after Roberts answered questions on the subject from Republican Tom Coburn, Democrat Feingold tried again. In addition to the April Gonzales interview, had not Roberts also been interviewed in May by Vice President Cheney, by the president's top political adviser, Karl Rove, and by the White House counsel? Yes, said Roberts, he had.

Senator RUSSELL FEINGOLD (Democrat, Wisconsin): Did you have further interviews on May 3rd concerning a possible appointment to the court?

Judge ROBERTS: May 3rd, yes. Whatever was--I don't know remember the exact date.

Sen. FEINGOLD: You never informed counsel in this case of these meetings, did you?

Judge ROBERTS: I did not, no.

Sen. FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case, isn't that right?

Judge ROBERTS: I don't want to discuss anything about what's at issue in the case. The case is still pending, and pending before the Supreme Court.

Sen. FEINGOLD: Well, how about this one? President Bush was named a defendant in the case, right?

Judge ROBERTS: Yes, in his official capacity.

TOTENBERG: It was the only time in two days of testimony that Roberts looked defensive and uncomfortable. Committee Chairman Arlen Specter in an interview shortly before the hearings began, said he did not think there were serious questions about Roberts' ethics.

Senator ARLEN SPECTER (Republican, Senate Judiciary Committee Chairman): Had he had a 20-20 rear vision mirror, he might have done it differently and I think in a sense it is a reflection of there's not a whole lot else to question him about. I don't think anybody seriously questions John Roberts' integrity.

TOTENBERG: And, indeed, Democrats seemed increasingly frustrated yesterday. The more they tried to get Roberts to move outside the box of legal questions to discuss his personal views, the more he resisted, saying that the job he's being confirmed for is the job of a judge, not a politician. And as a judge, he told the senators, he cannot make promises as they do. But Democrats maintained that the nominee was not answering questions in any meaningful way. Here, for instance, is a very frustrated Charles Schumer, Democrat of New York.

Senator CHARLES SCHUMER (Democrat, New York): Let me just say, sir, in all due respect--and I respect your intelligence and your career and your family--this process is getting a little more absurd every time--the further we move. You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers. It's as if I asked you what kind of movies you like. `Tell me two or three good movies,' and you say, `I like movies with good acting. I like movies with good directing. I like movies with good cinema photography.' And I ask you, `No, give me an example of a good movie,' you don't name one. I say, `Give me an example of a bad movie,' you won't name one. Then I ask you if you like "Casablanca," and you respond by saying `Lots of people like "Casablanca".' You tell me it's widely settled that "Casablanca" is one of the great movies.

TOTENBERG: At this point, Chairman Arlen Specter called a break in the proceedings, but Judge Roberts interrupted.

Judge ROBERTS: First, "Doctor Zhivago" and "North by Northwest."

TOTENBERG: It was a moment that said it all.

Nina Totenberg, NPR News, Washington.

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

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