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The Senate Judiciary Committee completed its third day of hearings on John Roberts' nomination to be chief justice of the United States. Senators from both sides of the aisle put more pressure on Roberts today, pressure to reveal his opinions of previous Supreme Court rulings. Among the top issues: abortion and eminent domain.
Tomorrow, the committee will have Roberts back for more testimony, and also the committee plans to hear from witnesses for and against his nomination. NPR legal affairs correspondent Nina Totenberg reports on today's proceedings.
NINA TOTENBERG reporting:
Outside the hearing room, Planned Parenthood announced its opposition to the Roberts nomination because of fears that the nominee would be hostile to abortion rights on the court, while inside the hearing room, it was pro-life senators who were seeking assurances from the nominee that he would reverse the Supreme Court's landmark Roe vs. Wade decision on abortion. Here, for example, is Kansas Republican Sam Brownback.
Senator SAM BROWNBACK (Republican, Kansas): The very root of the issue is the legal status of the unborn child. This is an old debate, and whether that child is a person or is a piece of property is the root of that debate. Our legal system, everything's one of the two; you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses. Could you state your view as to whether the unborn child is a person or is a piece of property?
Judge JOHN ROBERTS (Supreme Court Nominee): Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.
TOTENBERG: Brownback also focused on the issue of property rights and a Supreme Court decision last June that upheld the government's right to take private property for private redevelopment projects. The court said such projects are of public use, and that these mandatory transfers of property are permissible under the Constitution as long as those whose property is taken are paid fair-market value. Asked for his views on the controversial decision, Judge Roberts said this.
Judge ROBERTS: The court was not saying, `You have to have this power. You have to exercise this power.' What the court was saying is there is this power, and then it's up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent, that this is not an appropriate public use.
TOTENBERG: In short, Roberts said, the court left the legislatures free to outlaw such transfers of property. It was an answer that didn't seem to satisfy Senator Brownback.
The senator moved on then to a discussion of whether Congress may constitutionally strip the federal courts of jurisdiction to rule on subjects like abortion or religion. As a young aide in the Reagan administration, Roberts wrote memos strongly arguing that such court-stripping legislation is constitutional. Today, he said he may have been wrong back then.
Judge ROBERTS: The argument on the other side, the one that the attorney general adopted rather than the argument he asked me to present, is that it is the central function of the Supreme Court to provide uniformity and consistency in federal law, and that if you carve out exceptions in this core constitutional area, that you deprive it of that ability and that that itself violates the constitutional scheme.
TOTENBERG: Republican Senator Tom Coburn of Oklahoma broached the issue of the Supreme Court's citation of foreign law in some of its cases. Although the court has never cited any foreign law as controlling, it has used foreign laws in court decisions to buttress its arguments in legal opinions. That's outraged some members of Congress who've sought to pass a resolution calling for the impeachment of any judge who cites foreign law in a decision. Today, Senator Coburn noted that the Constitution calls for federal judges to serve their offices during good behavior.
Senator TOM COBURN (Republican, Oklahoma): And my question to you is, relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?
Judge ROBERTS: I wouldn't accuse judges or justices who disagree with that of violating their oath. I'd accuse them of getting it wrong on that point, and I'd hope to sit down with them and debate it and reason about it. But I think that justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read.
TOTENBERG: Committee Chairman Arlen Specter asked the nominee about the debate in the legal community between those scholars who contend that the Constitution is a living document meant to change meaning with the times and those who contend it means what the framers meant at the time the Constitution was adopted. Senator Specter said that if original intent is to be followed, how then, for example, could one explain the fact that the Congress that enacted the 14th Amendment guarantee of equal protection of the law did so at a time when the people watching in the galleries were segregated by race?
Judge ROBERTS: I depart from some views of original intent in the sense that those folks--some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they used, and if the words adopt a broader principle, it applies more broadly.
TOTENBERG: Ranking Democrat Patrick Leahy of Vermont devoted much of his second round of questioning to the death penalty. He noted that in the last five years, well over a hundred people have been found innocent and freed from death row after serving long prison terms, and some after coming within days of execution. Leahy harkened back to Roberts' hearing for confirmation to the appeals court two years ago.
Senator PATRICK LEAHY (Democrat, Vermont): You said two years ago--and I remember being at that hearing--you said that on the startling number of innocent men sentenced to death who were later exonerated, you responded, somehow showed the system worked in exonerating them. I worry about that statement. I really do. It has bothered me, that statement. I found it almost mechanical. Does a death row inmate who can prove he's innocent--do they have no constitutional right to do so in a court of law before they're executed?
Judge ROBERTS: I would think not. But the question is never `Do you allow the execution of an innocent person?' The question is: Do you allow particular claimants to raise different claims the fourth or fifth or sixth time to say at the last minute somebody who just died was actually the person who committed the murder--`Let's have a new trial'--or do you take into account the proceedings that have already gone on?
Sen. LEAHY: I'm looking for...
TOTENBERG: As the hearings proceeded, senators sought to pin down the nominee without much success. The Democrats and some Republicans were frustrated. Democrat Joseph Biden.
Senator JOSEPH BIDEN (Democrat, Delaware): Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.
TOTENBERG: Rolling the dice? Maybe. But there's little doubt that in the confirmation game so far, the winner has been John Roberts. Nina Totenberg, NPR News, Washington.
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