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The Senate Judiciary Committee ending its first day of questioning of Judge John Roberts, the president's nominee to be chief justice of the United States. If he's confirmed, Roberts will become the 17th chief justice in the nation's history. NPR's Nina Totenberg reports.
NINA TOTENBERG reporting:
The battle over the Roberts nomination encompasses many subjects, but none more than abortion and the Supreme Court's 1973 ruling that women have a fundamental right to make decisions on reproduction without government intervention. And so it was today that the chairman of the Judiciary Committee, Republican Arlen Specter, an abortion rights supporter, focused his opening round of questions on Roe and whether it should be left intact under the Supreme Court doctrine of stare decisis. That's the doctrine that mandates respecting past decisions so that the law is not constantly changing. Judge Roberts didn't commit himself, but seemed to telegraph hesitancy about overruling Roe.
Judge JOHN ROBERTS (Supreme Court 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. That really doesn't answer the question; it just poses the question. And you do look at these other factors like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.
TOTENBERG: Roberts went on to say that there are, of course, exceptions that prove the rule.
Judge ROBERTS: Brown vs. Board of Education is a leading example.
Senator ARLEN SPECTER (Republican, Pennsylvania; Judiciary Committee Chair): Do you think the court joint opinion is correct in elevating precedential force even above the specific holding of the case?
Judge ROBERTS: That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account: the values of respect for precedent, evenhandedness, predictability and stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded. So to the extent that the statement is making the basic point that it's enough that you might think the precedent is flawed to justify revisiting it, I do agree with that.
Sen. SPECTER: When you talk about your personal views and as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, "I do not speak for my church on public matters and the church does not speak for me," closed quote?
Judge ROBERTS: I agree with that, Senator, yes.
TOTENBERG: Later in the day, after a lunch break, Roberts seemed to walk the cat back a bit, saying that the court's 1992 Casey decision reaffirming Roe does not deserve any superdeference. Senator Specter asked questions as well on the broader question of privacy. In memos Roberts wrote when he served in the Reagan administration, the nominee referred to the `so-called right of privacy,' suggesting he did not think such a right exists in the Constitution. Today, though, he maintained that his memo was merely reporting on the views of the dean of the Harvard Law School. Senator Specter.
Sen. SPECTER: Do you believe today that the right to privacy does exist in the Constitution?
Judge ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.
TOTENBERG: On the subject of gay rights, Senator Specter asked Roberts about reports that he'd helped gay rights advocates prepare for a major Supreme Court argument in 1996. When Roberts' participation was disclosed, it upset many of his conservative supporters. But today, Roberts minimized his role, noting that he was the head of his law firm's appellate practice and thus was frequently asked to help lawyers preparing for a Supreme Court argument.
Judge ROBERTS: I was asked frequently by other partners to help out, particularly in my area of expertise, often involved moot courting, and I never turned down a request.
TOTENBERG: The subject of the questioning changed when ranking Democrat Patrick Leahy took his turn at interrogation and focused on the separation of powers between the executive and the other branches of government. Leahy first questioned Roberts about a memo the nominee wrote when serving in the Reagan administration, a memo that urged opposition to a bill on veterans' pensions because the bill defined the date on which the military operation in Lebanon ended. Roberts in his memo urged opposition to the bill because, quote, "I do not think we would want to concede any definite role for Congress in terminating the Lebanon operation." Senator Leahy pursued the point.
Senator PATRICK LEAHY (Democrat, Vermont): Your position in this memo in President Reagan's office seemed to indicate that Congress has--does not have an ability to end hostilities.
Judge ROBERTS: With respect, Senator, you're vastly overreading the memorandum.
Sen. LEAHY: Let me ask you this question: Does Congress have the power to declare war?
Judge ROBERTS: Of course. The Constitution specifically gives that power to Congress.
Sen. LEAHY: Does Congress then have the power to stop a war?
Judge ROBERTS: Congress certainly has the power of the purse.
Sen. LEAHY: We've cut off money; the wars sometimes keep going. Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?
Judge ROBERTS: Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side--and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and the argument for the executive.
TOTENBERG: Leahy next moved to the Bush administration's infamous torture memo. Although the memo was repudiated after it became public, it was Bush administration policy for two years. The memo maintained that the president has the power under the Constitution to authorize torture despite the fact that torture is outlawed by both US and international law.
Sen. LEAHY: Do you believe that the president has a commander in chief override to authorize or excuse the use of torture in 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: Several senators asked Roberts about memos he wrote that questioned the existence of gender discrimination as a real problem.
Judge ROBERTS: I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all the opportunities available to her without regard to any gender discrimination.
TOTENBERG: Democrat Joseph Biden pressed Roberts on memoranda he wrote that argued against the Reagan administration bringing a number of different sex discrimination lawsuits.
Judge ROBERTS: I was a staff lawyer. I didn't have a position; the administration had a position. And the administration's position was the twofold position you set forth: first, Title IX applies; second, it applies to the office, the admissions office.
Senator JOSEPH BIDEN (Democrat, Delaware): Only the office, right? It applies narrowly.
Judge ROBERTS: The question...
Sen. SPECTER: Now, now, wait a minute, let him finish his answer, Senator Biden.
Sen. BIDEN: His answers are misleading.
TOTENBERG: The exchange was indicative of the problems Democrats had in laying a glove on the nominee. Yesterday, Roberts told the committee a judge should be like a baseball umpire and should not pitch or bat. Today, Senator Biden, using Roberts' metaphor on baseball, said questioning the nominee was like pitching to Ken Griffey Jr. Nina Totenberg, NPR News, Washington.
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