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Wednesday, September 07, 2005

Which picture of Judge Roberts should you believe?

The following editorial reminds us of the importance of the Confirmation Hearings and some logical thoughts on how to get a more balanced view of his views.

U.S. SUPREME COURT; A bar just lifted higher
Sep 6, 2005 - Milwaukee Journal Sentinel
Author(s): Pimentel

Depending on to whom you're listening:

Chief Justice nominee John Roberts is a right-wing activist judge, quivering with excitement to make this a school-praying, anti- abortion, anti-privacy, anti-woman, states' rights nation, one that is anxious to execute death-row inmates whether they're guilty or not. Look for votes and direction tailor-made to make Phyllis Schlafly swoon.

Or he's a straight-arrow, balanced, fair, by-the-book, in-the- mainstream legal scholar, who is unwilling to overturn settled law and who, though conservative, is not hungering to make the Supreme Court the catalyst for renewed culture wars. Look for votes and direction that make him more akin to Justices Sandra Day O'Connor and Anthony Kennedy than to Judges Roy Bean and Dredd.

And the truth is?

Finding out is why we have Senate confirmation hearings. But finding out was just made all the more important Monday after President Bush nominated Roberts, whose name was first put forward to replace O'Connor, to be the nation's next chief justice. The bar has just been lifted higher for confirmation.

Hearings before the Senate Judiciary Committee, on which both of Wisconsin's U.S. senators sit, had been scheduled to begin today. Because of the unexpected death Saturday of Chief Justice William H. Rehnquist, those hearings have now been postponed to Thursday or beyond.

It would be better, of course, if the Roberts hearings could transpire without the background cacophony. We know that those days are long past. Don't be fooled by the noise, however. It is premature to make conclusive judgments about Roberts without such hearings, where he will be able to thoughtfully answer questions thoughtfully posed.

That's exactly what should happen in these hearings. But it only can if Roberts answers as many questions as possible without tap dancing and without taking refuge behind the dodge that he cannot answer because this will cause him to "pre-judge" cases.

Questions can be posed generally enough to get at judicial philosophy. And answers can be given generally enough to satisfy the crucial question: Is Roberts qualified to be chief justice? This question has little to do with whether he is dependably liberal or conservative. The question really has to do with whether he is knowledgeable enough about the law and the Constitution and whether within his judicial philosophy lies any agenda other than the basics: law, justice, rights and adherence to due process.

Of course Roberts is a conservative. A conservative won the last presidential election. It was unreasonable to expect Bush to nominate anything other. The question that will be before the committee is simply whether Roberts will ably lead the court, applying settled law fairly and creating new legal direction for the court based on fair readings of congressional intent, the Constitution and precedent.

There could indeed be wrong answers that should properly compel filibuster. These hearings are Roberts' opportunity to allay fears that he will take the country in a direction far outside of mainstream thought, a fear now heightened because Bush will have at least one more Supreme Court nomination. Roberts must not squander the opportunity with evasiveness.

Judiciary Committee members for their part should be less interested in gotcha questions than in useful lines of inquiry that can answer key questions on several important issues.

And, yes, abortion is among them, correctly posed in a question to Roberts on his views on the Constitution and privacy.

But there are also the issues of the death penalty, women, gay and civil rights generally, church-state separation, campaign financing and limits of federal power, whether the White House, Congress or the states should make the calls, depending on the issue.

There are indeed points in Roberts' writings and background that should prompt properly phrased, civil questions. Some say they've found the veritable smoking gun in those writings.

We're not so sure.

Getting the broader and true view is why the Senate has hearings. And discovering the truth is all the more crucial now that Bush has nominated Roberts to be chief justice.

Copyright 2005, Journal Sentinel Inc. All rights reserved.