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CHOOSING A CHIEF JUSTICE

Looking More Moderate Than His Early Writings

Roberts sees nothing 'constitutionally suspect' in a provision of the Voting Rights Act, and he also discusses affirmative action.

September 15, 2005|Richard B. Schmitt and Maura Reynolds | Times Staff Writers

WASHINGTON — Chief justice nominee John G. Roberts Jr. offered a fuller accounting of his views on voting rights and affirmative action Wednesday in carefully guarded testimony that provided the barest hints that he did not hew to the most conservative positions on the two sensitive issues.

Under relentless and occasionally sharp interrogation before the Senate Judiciary Committee, Roberts also emphasized a modest approach to judicial action and a deference to Congress.

Panel members pressed him for his views on a series of controversial cases and social issues, searching for clues about how he would affect the Supreme Court's ideological balance.

Although his comments leaned toward a more moderate position than the views expressed in some of his writings as a Justice Department lawyer in the Reagan administration, they were so sparse and cautiously phrased that they sparked protests from Democrats about his refusal to be more forthcoming.

Roberts declined to discuss his views on whether the Constitution allowed terminally ill people to end their lives -- even though the Supreme Court ruled that it did more than a decade ago.

And he declined to say whether he agreed with a high court ruling that limited the rights of death row inmates to appeal their convictions based on newly discovered evidence that might prove them innocent.

In the absence of answers, many panel members resorted to a kind of lobbying effort, seeking to impress upon Roberts their views of the law -- opinions he might consider if, as expected, he wins Senate confirmation to lead the court.

"I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act," Sen. Charles E. Grassley (R-Iowa) told Roberts. He made his remarks after trying, mostly unsuccessfully, to learn more about what Roberts thought about a federal whistle-blower law Grassley sponsored that allows private individuals to sue in cases of government fraud.

A day after Democrats grilled Roberts over whether he would overturn high court rulings guaranteeing abortion rights -- to no avail -- antiabortion Republicans seized an opportunity to make their case, admittedly with little, if any, expectation of a response.

"I would just ask you, Judge Roberts, to consider -- and probably you can't answer here today -- whether individuals with disabilities have the same constitutional rights that you and I share while they're in the womb," Sen. Sam Brownback (R-Kan.) said.

"I appreciate your thoughts on the subject very much," Roberts said. But he declined to answer, saying: "Those precise questions could come before the courts."

Despite Roberts' reticence on several fronts, a somewhat more complete portrait of the 50-year-old federal appeals court judge and former Reagan administration lawyer emerged. At times, his newly expressed views seemed at odds with those contained in the thousands of pages of memos and musings he wrote as a government lawyer two decades ago.

Pressed by Sen. Edward M. Kennedy (D-Mass.), Roberts said he saw nothing "constitutionally suspect" in a provision of the Voting Rights Act that he had raised questions about in the early 1980s. The provision makes it possible for minorities to win voting rights cases without proving intentional discrimination by election officials.

His position on the rights law -- a portion of which is set to expire in 2007 -- is a central concern to Democrats wary that as chief justice, he would promote rigidly conservative views on civil rights.

Roberts expressed support for portions of a 2003 opinion by Justice Sandra Day O'Connor upholding the rights of state universities to consider race in making admission decisions. Roberts said it was proper for the court to take note of the positive effect of racial and ethnic diversity in the military when it upheld an admissions policy at the University of Michigan Law School.

"You do need to look at the real-world impact in this area," Roberts said.

Roberts gave what Republican members of the panel interpreted as signals that he would be more deferential to the power of Congress to enact laws without being second-guessed by an activist judiciary.

He said it would be appropriate for state and local lawmakers to pass legislation to lessen the effect of a Supreme Court ruling in June that took an expansive view of the right of the government to seize private property.

As Roberts concluded his second day of taking questions from senators, he appeared on track to win confirmation from the GOP-controlled committee. The panel is expected to conclude its questioning of Roberts today.

Several of the Republican committee members expressed effusive support for the nominee.

"If people can' t vote for you, then I doubt that they can vote for any Republican nominee," Sen. Orrin G. Hatch (R-Utah) said.

The Judiciary Committee chairman, Sen. Arlen Specter (R-Pa.), told reporters that Roberts had "answered more questions than most."

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