WASHINGTON — Top Judiciary Committee Democrat Patrick Leahy of Vermont said he will vote against Supreme Court nominee John Roberts if the judge seems likely to pursue an “activist” philosophy. Another Democrat said Roberts assured him he is no ideologue.
In an interview broadcast Tuesday on Vermont Public Radio’s “Switchboard” program, Leahy said he would vote against the appeals court judge if it seemed as if he would pursue an activist agenda on the court. In selecting Roberts, President Bush emphasized that he was looking for someone who would not legislate from the bench.
Leahy said he’s worried that Roberts might try to unravel matters that should be settled law.
Denouncing conservatives on the current court, the Vermont senator said in the interview: “They have struck down parts of the Violence Against Women Act, environmental acts, child safety legislation.”
“They’ve knocked down all these, basically writing the law themselves,” Leahy added. “I want to find out if he’s going to be as active as this — as people like Justice (Antonin) Scalia and Justice (Clarence) Thomas, who have almost willy-nilly overruled things.”
Roe as line in the sand
Leahy also said any Supreme Court nominee who doesn’t agree that Roe v. Wade is established legal precedent would have difficulty getting confirmed.
“Just as you would not have a justice nominee who said, ‘Well I wouldn’t consider Brown vs. Board of Education settled law,’ I don’t see how they could get confirmed,” Leahy said. “I don’t see how somebody who said that they didn’t consider Roe vs. Wade settled law ... I don’t see how they get confirmed.”
Roe v. Wade is the 1973 case that established a woman’s right to an abortion. Brown v. Board of Education is the 1954 Supreme Court decision that struck down school segregation.
Schumer assured by judge
But Sen. Charles Schumer, D-N.Y., who also sits on the Judiciary panel, said he was assured by Roberts on Tuesday that he would not act as an ideologue if he makes it to the Supreme Court.
“He told me flatly that he is not an ideologue and said that he shares my aversion to ideologues,” Schumer said in a speech prepared for the National Press Club.
“Furthermore, he said I could repeat that publicly — that he is not an ideologue.”
Senators clash over hearings date
Senators sparred anew Wednesday over when Roberts' confirmation hearings should start, and Democrats pushed for more documents that could reveal his thinking on hot-button issues.
As Roberts, 50, continued to make courtesy calls on senators including Olympia Snowe, R-Maine, Senate Republicans and the White House worked to try to assure a confirmation vote before the court begins a new term in early October.
Sen. Arlen Specter, R-Pa., the Judiciary Committee chairman, said Wednesday he would convene hearings as early as Aug. 29 if necessary to meet that timetable. A later date — perhaps Sept. 6 — also was possible, he said, if Democrats commit to a confirmation vote before the start of the high court's new term on Oct. 3.
"But absent that kind of commitment, it seems to me that duty will call on us to go ahead with August 29," Specter said.
Democrats want to see more
Democrats, eager to learn more about what the nominee thinks about such issues as abortion and the death penalty, say that Roberts' supporters are trying to push them into voting before they get all of the paperwork they need on his work for Presidents Reagan and George H.W. Bush. The White House released some of the documents on Tuesday, but Democrats want more.
A final confirmation vote will likely come before the end of September anyway, regardless of when the hearings begin, said top Judiciary Democrat Patrick Leahy of Vermont.
"The irony is, the vote will probably be the exact same day whether we hold a hearing in August or whether we hold a hearing in September," he said Wednesday.
Roberts was 26 when he served in the Justice Department as a special assistant to Attorney General William French Smith during the Reagan administration. The 1981-82 files released Tuesday by the National Archives paint a picture of a politically savvy attorney who showed some impatience with "judicial activism."
Roberts focused on prisoners' appeals
One issue Roberts focused on was appeals by prisoners, who in the 1980s had several avenues of challenging their sentences in both state and federal courts. Since then, courts generally have limited prisoners' options, with justices this past term clashing over how closely they should scrutinize death penalty sentences by state courts.
The availability of federal court appeals, "particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Roberts wrote in a Nov. 12, 1981, memorandum, decrying the endless appeals that "obscures the rare serious claim."
Roberts also counseled the Reagan administration against some affirmative action policies, issuing a strong criticism of a U.S. Commission on Civil Rights report urging broader use of racial preferences.
He noted that a city police department had recruited minority cadets only to see them fail or drop out. "There is no recognition of the obvious reason for failure: The affirmative action program required the recruiting of inadequately prepared candidates," Roberts wrote.
Replacing the swing vote
Death penalty, affirmative action and abortion are all divisive issues on which Sandra Day O'Connor, the retiring justice whom Roberts has been nominated to replace, has been the swing vote. In recent terms, she has voted to uphold the use of race in college admissions and expressed concern about attorney competency in death penalty cases, so Roberts' views offer some insight in how key decisions could change.
Leahy and other Democrats on the panel wrote to President Bush that they were disappointed that the White House has declared some documents off limits.
The White House is invoking attorney-client privilege in withholding legal writings by Roberts when he was principal deputy solicitor general under the first President Bush.
"From what we know now, John Roberts had a hand in some of the most aggressive assaults on civil rights protections during the Reagan administration," Sen. Edward M. Kennedy, D-Mass., said in a statement. "The White House should make all relevant documents available so that the Senate can make an informed decision."
Gonzales: Roberts not bound by past
The disagreement over access to decades-old government records flared as Attorney General Alberto Gonzales suggested that, if confirmed, Roberts would not be bound by an earlier statement that the landmark 1973 ruling that established a woman's right to an abortion was settled law.
Gonzales told The Associated Press in an interview that "a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."
Committee aides began sifting through the first of thousands of documents to be made available, dating from Roberts' tenure as a special assistant in the Justice Department, and in the White House counsel's office in 1983-86.
As a historical footnote, one memo was hard to beat — a one-page paper in which the young Roberts reported that beginning "my first day on the job" he had been helping O'Connor prep for her own confirmation hearings to the high court.
"The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments," Roberts wrote in the Sept. 17, 1981, memo.
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