Updated Sept. 14, 8:17 p.m.
WASHINGTON (BP)–Supreme Court nominee John Roberts said Sept. 14 that judicial self-restraint is the best means to ensure courts don’t overstep their authority, although he refused to endorse conservative-backed legislation limiting the authority of federal courts in some areas.
On his second day of questioning before the Senate Judiciary Committee, Roberts faced pointed questions on abortion, end-of-life decisions and homosexual issues, and in all three instances refused to give his thoughts, stating that by doing so he would be abdicating his role as an impartial judge.
If confirmed, Roberts would become the nation’s 17th chief justice, replacing the late William H. Rehnquist.
Sen. Sam Brownback, R.-Kan., asked Roberts his thoughts on Article III, Section 2 of the Constitution, which many conservatives argue allows Congress to limit what issues come before the court. The section states, in part, that the “Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” It is referred to as the “exceptions clause.”
Last year the House passed a law that would prevent federal courts from reviewing the Defense of Marriage Act. It did not receive a Senate vote.
“It is a central debate among legal scholars [as to] the scope of that authority,” Roberts said of the clause. “… It is an area in which most distinguished scholars line up on either side, because it does call into question basic relationships between the Congress and the court.”
Brownback asked: “Could that language be any clearer, though, in the exceptions clause?”
“The question,” Roberts answered, “is whether [the clause] was intended to address more constitutional areas or simply more administrative matters. The argument [against limiting jurisdiction] says that if you get into the core constitutional areas, that undermines the Supreme Court’s authority, that the framers’ didn’t intend that.”
“Then what check is there on the court’s power?” Brownback asked.
“I think,” Roberts said, “the primary check is the same one that Alexander Hamilton talked about in the Federalist Papers…. So I would say the primary check on the courts has always been judicial restraint, and the recognition on the part of judges that they have a limited task, that they are insolated from the people. They’re given life tenure … precisely because they’re not shaping policy…. They’re supposed to just interpret the law.”
Roberts wrote a memo that apparently favored the limiting of jurisdiction as an attorney during the Reagan administration, Brownback said. But during committee testimony Roberts said the memo was written for the attorney general’s office, which asked him to outline the arguments in favor of limiting jurisdiction.
Brownback — a staunch pro-lifer — also asked Roberts: “Could you state your view as to whether the unborn child is a person or is a piece of property?”
Roberts responded: “Because cases are going to come up in this area, and that could be the focus of the legal argument in those cases, I don’t think it would be appropriate to comment on that one way or another.”
Round 1 of questioning concluded Wednesday morning with the final two senators asking questions, and round 2 subsequently began. Each of the 18 committee members gets 30 minutes in the first round and 20 minutes in the second round. There are 10 Republicans and eight Democrats. Senators were discussing going into a third round, with each senator receiving 15 minutes of questioning.
At one point Brownback pointed to a chart, showing that the Supreme Court upheld the pro-segregation Plessy v. Ferguson case (1896) for nearly 60 years until it overturned it in Brown v. Board of Education (1954), which ended legal racial segregation in America. Brownback’s chart apparently was intended to counter arguments made by other senators, including Sen. Arlen Specter, R.-Pa., who on the first day of questioning called Roe v. Wade “super precedent” and argued it should not be overturned.
On Wednesday Specter asked Roberts if he believed the concept of liberty in the Fourteenth Amendment is “living” and could “evolve.” Specter noted that when the amendment was adopted in the 1860s, the Senate gallery was segregated.
Roberts said the passage of the amendment “may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change, as they did, with respect to segregation in the Senate galleries, with respect to segregation in other areas.”
“… I depart from some views of original intent in the sense that … some people view [the Fourteenth Amendment] 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.”
Roberts was asked two questions concerning homosexual issues. Sen. Russell Feingold, D.-Wis., asked if Congress had the power “under the Constitution to prohibit discrimination against gays and lesbians in employment.”
“I don’t know if Congress has taken that step yet,” Roberts responded, “and until it does, I think that’s an issue that I have to maintain some silence on. Personally, I think that everybody should be treated with dignity in this area and respect. The legal question of Congress’ authority to address that, though, is one that could come before the courts.”
Sen. Charles Schumer, D.-N.Y., asked Roberts if he agreed with Justice Clarence Thomas’ view on the right to privacy as stated in Thomas’ Lawrence v. Texas dissent. The 2003 ruling struck down anti-sodomy laws. Roberts, though, said he was not willing “to state a particular view” on the Lawrence case.
Schumer eventually grew frustrated with Roberts’ decision to talk generally about constitutional law while not commenting on specific cases.
“It’s as if I asked you, ‘What kind of movies do you like?” Schumer said. “… And you say, ‘I like movies with good acting. I like movies with good directing. I like movies with good cinematography.’ I ask, ‘No, give me an example of a good movie,’ [and] 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,'” Schumer added to laughter.
He then pleaded: “[T]ry to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.”
Roberts, not be outdone, responded to laughter, “Dr. Zhivago and North by Northwest.” He then defended his decision not to comment on specific cases, saying there is “great danger” in a Senate confirmation hearing becoming a “bargaining process.”
“It is not a process under which senators get to say, ‘I want you to rule this way, this way and this way, and if you tell me you’ll rule this way, this way and this way, I’ll vote for you,'” Roberts said. “… Judges are not politicians. They cannot promise to do certain things in exchange for votes.”
The most contentious exchange of the morning session included Democratic Sen. Joseph Biden of Delaware, who questioned Roberts about his views on end-of-life decisions.
Asking Roberts to assume the role of a father, Biden asked, “Do you feel personally … that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment … should be one that the legislators in Dover, Del., should make or my mother should make?”
“I’m not going to consider issues like that in the context as a father or a husband or anything else,” Roberts responded. “… The position of a judge is not to incorporate his or her personal views in deciding issues of this sort.”
Biden then, in two consecutive exchanges, asked Roberts whether the Constitution includes a “fundamental right” to be taken off life support and whether a law can “trump” that right.
“I no longer want to have this feeding tube in my stomach,” Biden said, playing the role of someone on life support.
“Those are issues that come before the court,” Roberts said, “and as a result, I will confront those issues in light of the court’s precedent, with an open mind. I will not take to the court whatever personal views I have on the issues…. They will not be based on my personal views. They will be based on my understanding of the law.”
Biden, unsatisfied with the response, said, “We are rolling the dice with you, judge.”
Roberts restated his belief he could not comment on the issue and said future litigants are “entitled” to an impartial judge. He then said such a case would begin with the “recognition that the liberty protected by the due process clause does extend to matters of privacy. It’s not limited to restraints on physical freedom….”
Biden, still unsatisfied, said, “You’ve told me nothing, judge.” The public, he said, has a “right to know what you think about fundamental rights facing them.”
Earlier in the day Sen. Orrin Hatch, R.-Utah, called Roberts the most impressive Supreme Court nominee he had seen during his Senate tenure.
“If people can’t vote for you, then I doubt that they can vote for any Republican nominee,” Hatch told Roberts.