Repubs, Demos, Stake Out Ground As Roberts' Hearings Begin

by William Fisher

(IPS) -- Members of the Senate Judiciary Committee -- 10 Republicans and eight Democrats -- appeared unanimously opposed to "activist judges who legislate from the bench" during the first day of confirmation hearings for Supreme Court candidate John Roberts.

But in their 10-minute opening statements, it was clear that senators on the political left and right meant very different things by "judicial activism."

For those on the right -- most Republicans -- the term meant the Supreme Court should stop overturning laws passed by Congress because they violate "unenumerated rights" not specifically set out in the Constitution. These legislators believe there are no unenumerated rights. Their view is known as "strict construction."

For those on the left -- most Democrats -- "judicial activism" means viewing the Constitution as a "living document" that changes over time because of circumstances the Founding Fathers could not have anticipated when they framed the Constitution in 1789.

"Strict construction" would result, for example, in overturning a woman's right to an abortion because the Constitution makes no mention of any right to privacy. It would also roll back much of the civil and voting rights legislation of the past half-century.

The outlines of the hearings, which begin in earnest tomorrow when senators get a chance to question the nominee, became clear today in the 10-minute opening statements by each committee member.

Sen. Patrick Leahy of Vermont, the top Democrat on the committee, said the key question was whether the Supreme Court would "continue its trend toward limiting people's rights."

His view was echoed by Sen. Ted Kennedy, a Massachusetts Democrat, who said Hurricane Katrina exposed the "gross disparities" in U.S. society, and said he was "deeply concerned" that Roberts' previous record provided little reassurance that the Supreme Court would address these inequities.

Sen. Diane Feinstein, a California Democrat, noted that the Supreme Court has struck down more than three dozen laws affecting women's rights, and said she was troubled that Roberts might play a role in continuing this trend.

Most of the Republican senators made it clear they were satisfied by Judge Roberts' deeply conservative record based on his service in the Department of Justice under President Ronald Reagan and as deputy solicitor general under President George H.W. Bush.

As strict constructionists, most of these senators would have voiced strenuous objections if the Supreme Court had ruled on the legislation hurriedly passed by Congress in March to prevent lower courts from ordering the removal of a severely brain-damaged woman's feeding tubes.

Their objections would have been based on the fact that the Constitution makes no mention of end-of-life decisions and the principle of the separation of powers between the legislative, executive and judicial branches of the U.S. government.

Sen. Orrin Hatch, Utah Republican and former chairman of the Judiciary Committee, summed up the Republican position: The question, he said, is whether the Supreme Court will judge each case "on its merits" or become "super legislators."

Sen. Sam Brownback, a Republican from Kansas, told the nominee, "We need a more modest court, one that looks at the Constitution the way it is, not the way we might wish it to be."

He was critical of recent judicial decisions "re-interpreting the definition of marriage" and "deciding who should live and who should die." Brownback said that if the court had never affirmed Roe v. Wade -- the case that recognized a woman's right to abortion -- millions of babies "might be alive today."

He said that if the Supreme Court now overturned Roe, "it would not make abortion illegal, it would simply place it back where it used to be" -- in the hands of state legislatures.

Roberts addressed the committee late in the afternoon.

In less than five minutes, Roberts likened the role of a Supreme Court justice to that of an umpire at a baseball game. "Umpires don't make the rules, they enforce them. Nobody ever went to a ballgame to see the umpire. My job is to call balls and strikes, not to bat," he said.

He added: "I come before you with no agenda, no platform. But I have a commitment. I will confront every case with an open mind."

He said he would be "vigilant" to protect the independence of the judiciary.

Roberts is currently a judge on a Federal Court of Appeals -- a position to which the same Senate committee confirmed him unanimously two years ago. He was chosen to be an associate justice of the Supreme Court, but nominated to be chief justice upon the death of Chief Justice William H. Rehnquist.