» 1/13/06 - Senate Hearings Conclude   » 1/13/06 - Party Line Perspectives   » 1/12/06 - Alito Asked About Abortion, Inconsistencies   » 1/10/06 - Alito on Abortion, Presidential Power and Prejudice   » 1/9/06 - Alito Stresses Rule of Law in Opening Statement   » 1/4/06 - Alito Faces Close Questioning on Conservative Views   » 9/15/05 - Roberts' Confirmation Hearings Conclude   » 9/14/05 - Roberts Offers Clues, Avoids Direct Answers   » 9/14/05 - Roberts Comments on Court Procedures and Precedent, Avoids High-Profile Issues   » 9/13/05 - Senate Democrats Probe Roberts' Views on Abortion, Privacy and Gender-Discrimination   » 9/12/05 - Roberts' Nomination Hearing Begins   » 9/5/05 - Roberts Nominated as Chief Justice   Alito Confirmed by the Senate (1/31/06) - Kenneth Jost, CQ Press Supreme Court Editor, discusses Samuel Alito's confirmation by the Senate. Video: .wmv (21.3mb) Text: Interview transcript Alito Hearing Summary (1/20/06) - Kenneth Jost, CQ Press Supreme Court Editor, reviews Samuel Alito's confirmation hearings. Video: .wmv (17.5mb) Text: Interview transcript A Preview of Judge Alito's Confirmation Hearings (1/9/06) - Kenneth Jost, CQ Press Supreme Court Editor, previews Judge Alito's Confirmation Hearings. Video: .wmv (28.6mb) Text: Interview transcript Roberts' Nomination Elevated to Chief Justice (9/7/05) - Kenneth Jost, CQ Press Supreme Court Editor, discusses the change in Judge Roberts' nomination status to chief justice. Video: .wmv (9.5mb) | .mov (15.9mb) Text: Interview transcript John Roberts Nominated for Associate Justice (7/21/05) - An interview with Kenneth Jost on Judge Roberts' nomination. Video: .wmv (11.7mb) | .mov (18.2mb) Audio: .mp3 (5.3mb) Text: Interview transcript   Kenneth Jost is associate editor of The CQ Researcher, Supreme Court editor of CQ Press and a contributing editor to CQ Weekly. He has covered legal affairs since 1970 and is a co-winner of the American Bar Association's Silver Gavel Award and the Society of Professional Journalists Award for Excellence. He is a graduate of Harvard College and Georgetown University Law Center, where he was editor in chief of the Georgetown Law Journal. He is an adjunct law professor at Georgetown. He is author of CQ Press's annual Supreme Court review and editor of Supreme Court A to Z. He served as chief legislative assistant to Rep. Al Gore from 1977-1980. Jost is a frequent legal-affairs commentator for television and radio, including CNN, ABC and the BBC.

Senate Hearings Conclude

Posted: January 13th, 2006 - The Senate Judiciary Committee ended its hearing on Supreme Court nominee Samuel Alito on Friday with all signs pointing toward his confirmation on a party-line vote -- but only after a delay also pushed along party lines.

Committee Chairman Arlen Specter (R-PA) closed the hearing early Friday afternoon by announcing that he will vote for Alito and predicting approval by the GOP-controlled panel. But Specter's plan for a committee vote on Tuesday was upset when ranking Democrat Sen. Patrick Leahy of Vermont said some Democratic senators would use committee rules to delay the vote by a week.

Leahy said a delay was necessary because some senators would not be back in Washington after the Martin Luther King holiday weekend in time for a Tuesday vote. But Specter said the delay contradicted the schedule that he and Leahy had agreed to in November and indicated he would convene the committee on Tuesday anyway.

"As far as I'm concerned, we're going to proceed on the 17th," Specter said. "If they're held over, they're held over."

Specter, the most moderate of the 10 Republicans on the committee, had signaled likely support for Alito in his questions and comments throughout the week. On Friday, he said that Alito's qualifications were "agreed to" and that Alito "went about as far as he could go" in answering senators' questions on a range of issues -- most prominently, abortion and executive power.

Leahy did not say how he intends to vote, but he and the seven other committee Democrats indicated strong doubts about Alito as they questioned the veteran federal appeals court judge during his 18 hours of testimony. Specter told reporters afterward that he expects a party-line vote in the committee and "with some deviations" on the Senate floor.

Republicans hold a 55-44 edge over Democrats in the Senate, with one independent.

The scheduling dispute came after the committee concluded the five-day hearing with 23 outside witnesses, divided between Alito supporters and opponents. Opponents warned that his confirmation could lead to diminished protection for civil rights and liberties and expanded presidential power.

Supporters representing a range of political viewpoints countered by echoing Alito's own testimony that he has no political agenda. They disputed criticisms of his record as tilting in favor of government and corporations and against individuals.

Immediately after the hearing closed, the coalition of groups opposing Alito said they would step up television advertising and other lobbying efforts over the weekend.

Specter discounted any possible impact. "I don't think there's any life in it as a political issue," he said.

Party Line Perspectives

Posted: January 13th, 2006 - Supreme Court nominee Samuel A. Alito Jr. appeared headed toward confirmation Thursday after fending off repeated efforts by Democrats on the Senate Judiciary Committee to pin him down on divisive constitutional issues, including abortion and executive power.

Alito finished 18 hours on the witness stand shortly after noon on Thursday, with Republicans praising his performance and confidently predicting his confirmation. Democrats, meanwhile, criticized him for evading direct answers and several began to lay out grounds for voting against his nomination to succeed Justice Sandra Day O'Connor.

"We started these hearings seeking answers," Sen. Edward M. Kennedy (D-MA) said in a sharply worded prepared statement after wrapping up his questioning of Alito. "We come away with even more questions about Judge Alito's commitment to fairness and equal justice for all."

But Sen. Orrin Hatch (R-UT) said Democrats had raised "phony issues" in questioning Alito.

"You've been straightforward here, you've honestly answered the questions," Hatch said, addressing Alito directly. "I don't think you've been fairly treated."

While talk of a filibuster to block the nomination had faded by week's end, the contrasting party-line perspectives on Alito will be put to the test next week when the 10 Republicans and eight Democrats on the panel are scheduled to vote on whether to recommend Alito's confirmation to the high court. Republican leaders hope that the full Senate will consider the matter before the end of the month.

Frustrated Democrats

An appeals court judge, Alito was Bush's pick on Oct. 31 to succeed O'Connor after his earlier nominee, White House counsel Harriet Miers, withdrew in the face of withering criticism from conservative interest groups and commentators. As Thursday's hearings concluded, President Bush called Alito from Air Force One to congratulate him "for doing a great job," White House Press Secretary Scott McClellan told reporters.

Democrats say the Miers episode raises questions about the politics of his selection, and in the hearings, they voiced their strongest complaints about Alito's refusal under persistent questioning to give a clear statement about his views of the Supreme Court's key abortion rights decision, Roe v. Wade.

With slight variations, Alito answered consistently that Roe was entitled to respect as a legal precedent but he declined to call it "settled" law.

Several Democrats said Alito appeared to be leaving the door open to overturning or substantially modifying Roe if confirmed. Republicans discounted warnings that Alito's prior statements as a Reagan administration lawyer opposing a constitutional right to abortion signaled his likely vote if confirmed.

Democrats were also frustrated in their efforts to probe Alito's views about executive power, including the legality of President Bush's post-Sept. 11 program of domestic eavesdropping without judicial authorization. Alito said that he was required to give "no hints, no previews" about how he might rule on a future case.

Personal Issues Queried

Alito also faced sharp questions on two personal issues: his initial failure to step out of a case involving the financial services company where he has a six-figure mutual fund and his membership in a controversial conservative Princeton alumni group.

On the recusal issue, Sen. Kennedy echoed other Democrats' complaints when he said that Alito had offered "series of explanations" for his actions.

In his clearest statement on the matter, Alito acknowledged Thursday that it was "an oversight on my part" not to step out of the 2002 appeal of a case involving the Vanguard investment company. But he also said he rectified the problem by recusing himself later and asking for the appointment of a new appeals panel to hear the case.

"When the recusal issue was brought to my attention, I did everything that I could that nobody could come away with an impression that Mrs. Maharaj [the plaintiff in the case] got anything other than a completely fair appeal," Alito said.

Later, witnesses from the American Bar Association's Standing Committee on the Judiciary said the group found no reason to question Alito's ethics. "We accepted his explanation that he had simply made a mistake," said Washington, D.C., lawyer John Payton. The committee gave Alito its highest rating: "well qualified."

Documents Defuse One Debate

Democrats used Alito's membership in the now defunct Concerned Alumni of Princeton to question his views on diversity. The group -- which formed not long after Alito's graduation from Princeton in 1972 -- was widely known to oppose efforts to increase the number of women and minority students.

Alito listed membership in the group in a 1985 job application for a promotion within the Justice Department, but repeatedly told the committee he had no recollection of having been active.

After a brief flare-up between Kennedy and Judiciary Committee Chairman Arlen Specter (R-PA) on Wednesday, the committee asked for and received four boxes of papers of William Rusher, one of the founders of the group and a conservative journalist.

Senate staffers worked overnight to look for evidence of Alito's participation. Specter opened Thursday's proceedings by announcing that the papers, held at the Library of Congress, contained no mention of Alito's name, not even a canceled check to pay for a subscription to the group's magazine.

Outside Voices

Democrats and a coalition of liberal interest groups have worked strenuously over the past 10 weeks to develop a case against Alito, mainly because of the high stakes of his nomination to succeed O'Connor. With the high court closely divided between conservative and liberal blocs, O'Connor has had a decisive vote on some of the highest-profile issues, including abortion, affirmative action, church-state relations and federalism.

Conservative interest groups have rallied around Alito, saying that his record in 15 years as a judge on the federal appeals court for his home state of New Jersey showed him to be meticulous, fair and respectful of legal precedent. In his opening statement on Monday, Alito, 55, said that he had "no agenda" other than "the rule of law."

In an unusual appearance, seven current and former colleagues of Alito's from the 3rd U.S. Circuit Court of Appeals endorsed his nomination in a joint appearance late Thursday. They uniformly described him as a fair and open-minded judge who decides cases without regard to personal views or preferences.

"The Sam Alito I have sat with is not an ideologue," said Edward Becker, a former chief judge of the Philadelphia-based court. "He's not a movement person."

The Road to Nomination

Alito's appointment to the appeals court in 1990 by the first President Bush came after 13 years as a government lawyer starting as an assistant U.S. attorney in New Jersey. From there, he became an assistant U.S. solicitor general -- where he won eight out of the 12 cases he argued before the Supreme Court -- and then deputy assistant attorney general in the Office of Legal Counsel.

In his 1985 letter applying for the Justice Department job, Alito identified himself as a conservative and criticized Supreme Court decisions on abortion, defendants' rights, church and state, and reapportionment. It was that application that raised so many questions at the hearings. Although Alito distanced himself somewhat from his comments, he did not flatly disavow them.

In 1987, Alito sought out appointment to the vacant position of U.S. attorney for New Jersey. The Senate confirmed him for the federal prosecutor's post and later for the federal judgeship without controversy and by unanimous consent.

Alito Asked About Abortion, Inconsistencies

Posted: January 12th, 2006 - With partisan division widening, Supreme Court nominee Samuel A. Alito Jr. again avoided specific answers on abortion and other matters during his confirmation hearing before the Senate Judiciary Committee Wednesday.

Frustrated Democrats tried to sharpen their rhetoric, accusing Alito of inconsistencies on some issues and ducking their questions on others. Satisfied Republicans praised Alito's answers and criticized the Democrats' accusatory tone and repetitive questions.

For his part, Alito appeared poised and assured during a second long day of testimony. While there was little new substance in the questions or the answers, the day was punctuated by a confrontation between Committee Chairman Arlen Specter (R-PA) and Massachusetts Democrat Edward M. Kennedy and by a brief, emotional departure by the nominee's wife.

At day's end, two Republican senators -- Sam Brownback of Kansas and Tom Coburn of Oklahoma -- became the first committee members to explicitly endorse Alito.

"You're going to serve as an outstanding justice of the U.S. Supreme Court," Brownback said.

The panel returns for a third day of questioning Thursday.

Nothing Settled on Abortion

Throughout the day, Democrats pressed for a more definitive statement from Alito on his view of the high court's two major abortion precedents -- the 1973 Roe v. Wade ruling that legalized abortion and the 1992 decision, Planned Parenthood v. Casey, which reaffirmed Roe while giving states somewhat more room to regulate abortion procedures.

Sen. Richard J. Durbin (D-IL) opened by asking whether Alito considered Roe to be "settled" law. Alito resisted the term.

"If settled means it can't be re-examined, then that's one thing," Alito said, referring to the legal principle generally requiring that courts follow prior rulings. "If settled means that it is a precedent that is entitled to respect under stare decisis," he continued, "it is a precedent that is entitled to respect under the principles of stare decisis."

"Many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion," Durbin said.

Eight hours later, Alito continued to be noncommittal even after Sen. Charles Schumer (D-NY) reminded him that he had been willing to describe several other Supreme Court decisions as "well settled," including the Brown v. Board of Education school desegregation ruling.

"The line that I have tried to draw is between issues that I don't think realistically will come before the court," Alito explained. He added, "Maybe I've been more forthcoming than I should have been in making these extemporaneous comments."

Accusations of Inconsistency

Democrats opened the day's proceedings by charging Alito with inconsistencies in his testimony on issues ranging from abortion to ethics to his membership in a controversial conservative Princeton alumni group.

"I'm concerned that you may be retreating from your prior record," said Vermont Sen. Patrick J. Leahy, the committee's ranking Democrat.

Tempers flared briefly when Sen. Edward M. Kennedy (D-MA) said he wants the committee to subpoena records held by the Library of Congress relating to the conservative Concerned Alumni of Princeton.

Alito testified Wednesday, as he did Tuesday, that he has no specific recollection of his membership in the group, even though he mentioned it in a 1985 job application. On Wednesday, he strongly disavowed some of the group's writings and its opposition to increasing the number of women and minority students at his undergraduate alma mater.

Kennedy complained that Alito's "explanations" about his membership "don't add up." But Committee Chairman Specter exploded when Kennedy said he would press for a vote on seeking the documents.

"I'm chairman of this committee, and I'm not going to have you run this committee," Specter said.

Panel to Review Papers

After a lunch break, Specter announced that the issue had been resolved when the donor of the papers -- conservative journalist and Princeton alumnus William Rusher -- had agreed to allow the committee to view the documents.

Republican senators defended Alito. Sen. Lindsey Graham (R-SC) called the criticisms about the Princeton group "guilt by association."

In an effort to help, Graham asked Alito, "Are you a closet bigot?"

"I am not any kind of bigot," Alito answered.

At this point, Martha-Ann Alito, the nominee's wife, became emotional and briefly left the hearing room.

Both Graham and Sen. Charles Grassley (R-IA) also rebutted Democratic criticism of Alito's failure to recuse himself from a 2002 case involving the Vanguard investment company, where Alito has his mutual funds.

"Your critics are grasping at any straw to tarnish your record," said Grassley, who also praised Alito as "very consistent" in his answers.

Power and the Unitary Executive Theory

In questioning about executive power, Alito added little new information, but he did attempt to clarify some earlier answers.

Alito distanced himself from the broad view of presidential power during wartime held by some conservatives. He had drawn questions on the issue because of a speech he gave in 2000 endorsing a so-called unitary executive theory. He explained Wednesday that he viewed the theory as relating solely to the president's control over subordinates.

"When I talk about the unitary executive, I'm talking about the president's control over the executive branch," Alito said. "To me the issue of the scope of the executive power is an entirely different question."

In contrast to Democrats' confrontational tone, Republicans generally offered up softball questions for Alito. Even so, several GOP senators were unsuccessful in eliciting favorable responses on issues with which they were concerned.

Citing some of Alito's prior opinions, Brownback asked whether Alito believed religious displays in and around government buildings were generally constitutional. Alito said only that the Supreme Court "has drawn some fairly fine lines" on what is permissible and what is not.

The Chairman's Turn

Specter asked Alito whether he would favor televising Supreme Court proceedings. Alito, who has served on the Third U.S. Circuit Court of Appeals since 1990, said he had favored allowing television coverage of its arguments. But, he added, "It would be presumptuous for me to talk about it right now."

Democrats appeared to be working uphill to make out a case for opposing President Bush's nomination of Alito to succeed the retiring Justice Sandra Day O'Connor. Republicans hold a 10-8 majority on the panel, and none of the GOP senators has given any hint of breaking party ranks on the vote.

By the end of the day, Republicans were complaining about the tone of the proceedings. "This turns into an adversarial process," Sen. John Cornyn (R-TX) told reporters.

But Durbin defended the questioning. "We want to ask him important questions and ask them in a respectful way," he said.

Specter had hoped to end Alito's time on the witness stand Wednesday, but Democrats asked for another round of questions. The committee resumes at 9 a.m. on Thursday.

Alito on Abortion, Presidential Power and Prejudice

Posted: January 10th, 2006 - In a move to answer critics Tuesday, Supreme Court nominee Samuel A. Alito Jr. acknowledged a constitutional right to privacy and distanced himself from a two-decade-old statement against the right to abortion.

Alito did so without upsetting conservatives as he stopped short of promising to follow the high court's key abortion rights decisions — the landmark Roe v. Wade ruling in 1973 or the 1992 decision Planned Parenthood v. Casey — that gave states room to regulate abortion procedures while still upholding the basic right. Alito repeatedly said the high court should ordinarily follow precedents, but he left room for overturning prior decisions under "special justification."

On the second major issue of his confirmation hearing before the Senate Judiciary Committee, Alito also sought to reassure skeptical Democrats that he recognizes constitutional limits on presidential power, even in time of war. But he again steered clear of answering specific questions, including whether President Bush had violated the Constitution by circumventing a congressional statute in authorizing domestic eavesdropping without judicial warrants.

Alito spent more than seven hours on the witness stand Tuesday, answering questions from 14 of the committee's 18 members in a marathon that ended shortly after 7 p.m. As the hearing concluded, Judiciary Committee Chairman Arlen Specter (R-PA) complimented the 55-year-old appeals court judge on his "stamina, poise and good humor."

Other Republican senators had high praise for Alito's testimony and his judicial record. "I can't remember a nominee being more forthcoming," said Sen. Jeff Sessions (R-AL). But Democrats made clear they found many of his answers incomplete or evasive.

The hearing resumes at 9:30 a.m. on Wednesday. Specter is continuing to aim afor completing the hearing by week's end, with a committee vote next Tuesday.

Abortion Remains Focal Point

Specter opened the questioning just as he had done in the confirmation hearing for Chief Justice John G. Roberts Jr. by asking Alito whether he agreed with Supreme Court decisions protecting the right to privacy for married or unmarried couples to use contraceptives. "I do agree that the Constitution protects a right to privacy," Alito said, promising to approach any abortion case with "an open mind."

On the abortion cases, Alito said, "The courts should generally follow their past precedents."

He also stepped away from his 1985 statement as a Reagan administration lawyer in opposition to Supreme Court decisions recognizing a right to abortion. He called it "a correct statement of my view at the time," but added, "When someone becomes a judge, you have to put aside the things that you did as a lawyer in prior points in your legal career."

Later, however, Alito resisted repeated efforts by Sen. Charles Schumer (D-NY) to answer directly whether he today believes in a constitutional right to abortion. Alito said only that he would decide that issue -- "if I got to it" -- according to the legal doctrine of stare decisis, which calls generally for following precedent. After four tries, Schumer gave up, but not before predicting that Alito would vote to overrule Roe if confirmed.

Executive Power and Wartime

Specter and committee Democrats also questioned Alito on his views on executive power. Senators linked the issue to Bush's post-Sept. 11 decision to circumvent the congressional statute requiring warrants for domestic intelligence gathering and the administration's now disavowed claim of presidential authority to use torture overseas despite a Senate-ratified treaty banning the practice.

"No person in this country is above the law, and that includes the president and that includes the Supreme Court," Alito told the committee's ranking Democrat, Patrick J. Leahy of Vermont. "The president must follow the Constitution and the laws."

Alito, however, did not directly challenge Bush's authority on either of the issues. Instead, he cited a 1952 Supreme Court decision in saying that presidential authority "is at its lowest point" when an action conflicts with a congressional statute.

Judicial Role

Repeatedly, Alito returned to the theme he had struck in his opening statement on Monday: that courts have what he called "a very important" but a "limited" role in the constitutional system.

"The judiciary has to protect rights, and it should be vigorous in doing that," Alito said. But, he added, "It should always be asking itself whether it is spreading over the bounds, whether it is invading the authority of the legislature, whether it is making policy judgments rather than interpreting the law."

At the same time, Alito retreated from his 1985 memo minimizing judicial power by referring to the "supremacy of the elected branches of government." He called the statement "an inapt phrase," adding: "No branch is supreme to the other."

Ethics, Alumni Group

On other issues, Alito defended his initial failure to step out of an appeal involving the Vanguard investment company because of his mutual fund investments with the company, but acknowledged, "If I had it to do over again, I would do it differently."

Sen. Edward M. Kennedy (D-MA) said Alito had broken his "pledge" when confirmed to the federal appeals court to recuse himself from any Vanguard cases. But Grassley called the ethics allegation against Alito "absurd," noting that the American Bar Association had rated him well qualified and called him "an individual of excellent integrity."

Alito also distanced himself from a group, the Concerned Alumni of Princeton, that opposed steps to increase the number of women and minority students at his undergraduate alma mater. Alito repeated the statement in his Judiciary Committee questionnaire that he had no specific recollection of his membership in the group.

After citing his own background from an Italian-American family, Alito added that he would not have been "comfortable" with restricting more diversity on campus. "That certainly wasn't part of my thinking," he said.

A Smooth Witness

Alito seemed assured and unruffled during most of the questioning. But he bristled when Sen. Russ Feingold (D-WI) asked whether any administration officials had coached him on how to answer questions on the domestic eavesdropping issue. "Nobody at any of these sessions has ever told me what to say," Alito said. "Everything that I have said is an expression of my own ideas."

At other points, Alito relaxed somewhat. He joked with Sessions when the senator cited the constitutional protection for judicial salaries as evidence that Alito would be independent of the Bush administration if confirmed. "Can the president cut your pay?" Sessions asked. "He can't," Alito said. "And neither can Congress."

Alito Stresses Rule of Law in Opening Statement

Posted: January 9th, 2006 - Facing strong doubts from Democrats, Supreme Court nominee Samuel A. Alito Jr. presented himself to the Senate Judiciary Committee on Monday as an open-minded judge with no “agenda” other than “the rule of law.”

“A judge can't have any agenda, a judge can't have a preferred outcome in any particular case, and a judge certainly can't have a client,” Alito said after listening silently to opening statements from the committee's 18 members. “A judge's only obligation -- and it is a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.”

Alito's pledge echoed the promise that Chief Justice John G. Roberts Jr. made to the same committee in September in a successful effort to allay concerns that he would bring a conservative agenda to the high court. Roberts won confirmation by a 78-22 vote, with all Republicans and half of the Senate's 44 Democrats voting to approve him. This nomination promises to be more contentious.

Laying the Groundwork

All eight Democrats on the Judiciary Committee laid the groundwork on Monday for possible opposition to Alito if he holds to conservative positions that he has taken on a range of issues, including abortion, executive power, civil rights, and congressional authority

“The challenge for Judge Alito in the course of these hearings is to demonstrate that he will protect the rights and liberties of all Americans and serve as an effective check on government overreaching,” said Sen. Patrick J. Leahy of Vermont, the panel's ranking Democrat. He was one of three committee Democrats — along with Wisconsin's Herb Kohl and Russ Feingold — who voted for Roberts.

The Republicans on the committee sounded just as unified. They countered by stressing Alito's academic and professional credentials, including his 15 years as a judge on the federal appeals court for his home state of New Jersey.

“You easily fit into the mold of what this nation has come to expect from Supreme Court justices,” Sen. Jon Kyl, R-Ariz., told Alito. “A first-rate intellect, demonstrated academic excellence, a life of engagement with serious constitutional issues, and a reputation for fair-mindedness and modesty.”

The Groups at Work

Alito's nomination has been the focus of a pitched battle since President Bush selected him on Oct. 31 to succeed retiring Justice Sandra Day O'Connor, a conservative centrist. Stressing O'Connor's role as a swing vote on such issues as abortion and affirmative action, a long list of liberal groups are opposing Alito's confirmation on grounds he would shift the court's balance of power too far to the right.

Alito's opponents were out in force on Monday. The abortion rights group Pro-Choice America organized an anti-Alito demonstration outside one of the Senate office buildings as the hearings were about to begin.

Meanwhile, the American Civil Liberties Union (ACLU) announced late Monday that it is opposing Alito's confirmation because of what it called his “troubling record on civil rights and civil liberties.” The last time the ACLU opposed a Supreme Court nominee was in 1987 when the Senate rejected President Ronald Reagan's nomination of Robert Bork.

Social conservatives had staged a pro-Alito rally on Sunday with a program in a predominantly African American church in Philadelphia that was televised on several Christian networks and directly into churches around the country. Various speakers, including Sen. Rick Santorum, R-Pa., endorsed Alito's nomination as a way to oppose “liberal judicial activism” on such issues as gay marriage, abortion and church-state separation.

A Humble Beginning

The nominee steered clear of any of those issues in his 10-minute opening statement on Monday. Instead, Alito stressed his personal background as the son of an Italian immigrant father and first-generation American mother who both had successful careers and instilled in him and his sister “a deep love of learning.”

Alito went on to hint at the source of his conservative views by noting that he attended Princeton University and Yale Law School during the turmoil of the late 1960's and early 1970s.

“I saw some very smart people and very privileged people behaving irresponsibly,” Alito said. “And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.”

Alito mentioned only briefly his decade of service in the Justice Department -- as an assistant solicitor general, deputy assistant attorney general in the Office of Legal Counsel, and finally U.S. attorney for New Jersey. Several Democratic senators said they will question Alito about his statements in the 1985 letter applying for the Office of Legal Counsel job opposing Supreme Court decisions on abortion, affirmative action, criminal law, religious freedom, and reapportionment.

O'Connor's Long Shadow

Committee Chairman Arlen Specter, R-Pa., opened the confirmation hearing by challenging the conventional wisdom that Alito would have a pivotal vote on the high court. Specter said that if Roberts sticks to his promise of “modesty” and “stability” on the court, Alito “may not be the swing vote regardless of what position he takes on the judicial spectrum.”

Democrats, however, uniformly pictured the nomination as critical to the court's future direction. “The process of filling this vacancy on the Supreme Court is going to tip the scales one way or another,” said Sen. Richard J. Durbin, D-Ill. Sen. Joseph R. Biden Jr., D-Del., noted that O'Connor had cast the decisive vote in 77 percent of 191 5-4 decisions during her tenure.

None of the Republican senators directly endorsed Alito's confirmation, but several left no doubt that they would vote to approve him. And several challenged the Democrats' suggestion that Bush should have nominated a centrist conservative like O'Connor to maintain the court's current balance of power.

“That's not the way we've operated in the past,” said Sen. Sam Brownback, R-Kans., “and it's not the way we should operate today.”

Specter, who said he has not decided how he will vote, will begin the questioning of Alito when the hearing resumes at 9:30 a.m. on Tuesday. In addition to abortion, Specter said he will question Alito about executive power in the light of President Bush's approval of warrantless domestic electronic surveillance following 9/11. He said he will also ask Alito about recent Supreme Court decisions narrowly construing congressional power.

Senators will continue questioning, in order of seniority, for at least three rounds. Specter said he plans to finish the hearing this week and to have the committee vote on the nomination on Tuesday, Jan. 17. But Democrats could delay the vote by exercising their right to hold the nomination over for a week after the end of the hearing.

Alito Faces Close Questioning on Conservative Views

Posted: January 4th, 2006 - Supreme Court nominee Samuel A. Alito Jr. can expect warm praise from Republicans and sharp questions from Democrats when the Senate Judiciary Committee opens hearings Monday on his confirmation to the nation's highest court.

The 55-year-old federal appeals court judge remains an odds-on favorite to succeed retiring Justice Sandra Day O'Connor, who was often a swing vote on the court. But it won't be without a fight: Liberal interest groups are mounting strong opposition to the nomination, and some Democratic senators hold open the possibility of a filibuster to try to block a vote on Alito in the Republican-controlled Senate.

President Bush chose Alito for O'Connor's seat on Oct. 31, after the failed nomination of White House Counsel Harriet Miers. Conservative groups that had strongly criticized Miers' lack of experience rushed to embrace Alito, describing him as a careful and experienced jurist with a solid resume and mainstream views.

Liberal groups were equally quick in challenging Alito. People for the American Way called Alito a right-wing activist who would dramatically change the ideological balance on the court. Two issues are likely to stand out in questioning: abortion and presidential power.

Abortion rights groups warn that Alito could provide a critical vote to uphold additional regulation of abortion or possibly even overturn the landmark Roe v. Wade decision, which protects a woman's right to an abortion during most of a pregnancy.

Critics also cite his expansive view of presidential power. In a speech, Alito endorsed the so-called unitary executive theory, which generally views restrictions on presidential power as unconstitutional. The issue gained importance after the disclosure that President Bush authorized domestic electronic surveillance without warrants following the Sept. 11, 2001, terrorist attacks.

The Nominee So Far

Alito, a former Reagan administration lawyer and federal prosecutor, stressed what he called the courts' "limited role" when he accepted Bush's nomination in a brief White House ceremony. Since then, Alito has paid courtesy calls on senators and rehearsed for the confirmation hearing in closed-door sessions organized by Justice Department officials helping to shepherd the nomination through the Senate.

Alito is expected to have a brief opening statement when the Senate Judiciary Committee begins the confirmation hearings on Monday. The committee's 10 Republicans and eight Democrats will then follow with their own opening statements. Questioning is likely to begin on Tuesday and continue through the end of the week.

O'Connor's Shadow

O'Connor has continued to hear arguments and vote on cases while waiting for action on the nomination. Judiciary Committee Chairman Arlen Specter (R-Pa.) says he wants the committee to vote on Alito in time to allow a Senate vote on confirmation by Jan. 20. Once a successor is confirmed, O'Connor's preliminary votes will no longer be counted or announced -- raising the possibility that some cases might have to be re-argued if the remaining eight justices are evenly divided.

Alito's nomination is especially important because of the pivotal role that O'Connor has played in her 25 years on a court closely divided between conservative and liberal blocs. While her record is predominantly conservative, O'Connor cast decisive votes to reaffirm abortion rights, uphold racial preferences in college admissions, overturn some death penalty cases, and broaden federal anti-discrimination laws, especially those protecting women's rights.

Alito has a more pronounced conservative record on those and other issues, according to liberal critics. They say that his views as a lawyer in the Justice Department and his opinions during 15 years on the 3rd U.S. Circuit Court of Appeals demonstrate that he takes a narrow view of defendants' rights, anti-discrimination laws, church-state restrictions and federal powers.

Judging Abortion Rights

Democrats have served notice that they will closely question Alito, in particular, about conservative views he expressed in his successful application in 1985 for the job of deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Alito described himself then as a lifelong conservative and said he was "particularly proud" of his work as an assistant U.S. solicitor general in arguing against abortion rights and racial and ethnic quotas. He also criticized Warren Court decisions that protected defendants' rights, enforced church-state separation and imposed "one-person, one-vote" requirements on state legislatures.

Alito's judicial record also includes one notable opinion that abortion rights advocates are emphasizing in opposing his nomination. When the 3rd Circuit reviewed a Pennsylvania abortion law in 1991, Alito voted to uphold the act in its entirety, including a provision requiring a married woman to notify her husband before undergoing the procedure. The two other judges hearing the case -- known as Planned Parenthood v. Casey -- voted to strike down the spousal notification provision while upholding the rest of the law.

When the Supreme Court heard the Casey case, O'Connor and two other Republican-appointed justices -- Anthony M. Kennedy and David H. Souter -- joined in a crucial opinion reaffirming Roe v. Wade while slightly modifying the test for judging abortion regulations. The ruling upheld the Pennsylvania law except for the spousal-notification provision.

Alito's supporters say that his work on abortion issues while in the Reagan administration does not necessarily reflect how he will vote on such cases as a judge. They also note that in 2000, he voted to follow Supreme Court precedent in striking down a New Jersey law banning the late-term procedure that opponents call a partial-birth abortion.

Single Opinions v. Judicial Philosophy

Among his other opinions, opponents also criticize Alito for casting doubt on the constitutionality of a federal ban on machine guns, for voting to limit protections for state workers under the federal Family and Medical Leave Act, and for rejecting a Pennsylvania inmate's effort to overturn his death sentence because of inadequate legal representation. On appeal, the Supreme Court overturned the sentence in June; O'Connor cast the pivotal vote in the 5-4 decision.

Alito's supporters, including some liberal-leaning lawyers and academics, say that his opinions are meticulously crafted, narrowly written and scrupulously tied to legal precedents. Conservative interest groups echo President Bush in describing Alito as a judge who will apply the law as written and not legislate from the bench.

Alito Bio

A native of New Jersey, Alito is the son of an Italian immigrant father who worked as research director for a state agency that analyzed legislation for state lawmakers. He died in the mid-1980s. Alito's mother, who turned 91 in December, was principal of the local elementary school.

Alito graduated from Princeton University in 1972 and Yale Law School in 1975. Classmates have described him as conservative but not politically vocal or active. He was a law clerk to a 3rd Circuit judge and then an assistant U.S. attorney in Newark before serving for four years as an assistant U.S. solicitor general. He argued 12 cases before the Supreme Court during that time and won eight decisions.

After two years in the Office of Legal Counsel, Alito served for three years as U.S. attorney for New Jersey. The first President Bush appointed him to the 3rd Circuit in 1990. He easily won Senate confirmation for both posts.

Background on the Nomination

The current President Bush first interviewed Alito for O'Connor's seat last summer, but chose Judge John G. Roberts Jr. of the D.C. Circuit instead. After Chief Justice William H. Rehnquist died in September, Bush decided to name Roberts to that vacancy. Roberts won confirmation by a vote of 78-22 and presided over the opening of the Supreme Court term on Oct. 3.

Bush first picked Miers, his White House counsel, for O'Connor'seat. But she withdrew on Oct. 27. The president then settled on Alito and made the announcement on Oct. 31.

With Republicans holding 55 of the Senate's 100 seats, Alito's opponents are emphasizing his conservative views to try to persuade several moderate GOP senators to break party ranks and vote against confirmation. If that effort fails, opponents want Democrats to mount a filibuster to prevent a Senate vote. Supporters would need 60 votes to break the filibuster and force a vote.

Roberts' Confirmation Hearings Conclude

Posted: September 15th, 2005 - Supreme Court nominee John G. Roberts Jr. finished 17 hours in the witness chair Thursday much as he began, declaring his loyalty is only to the law. Just as in his opening statement Monday, he said he was without an "agenda;" Roberts concluded on Thursday by declaring himself no "ideologue."

Roberts ended his personal appearance before the Senate Judiciary Committee on rhetorical high notes, aiming to answer concerns raised by Democratic senators and liberal interest groups during a week of confirmation hearings.

"I became a lawyer or at least developed as a lawyer because I believe in the rule of law," Roberts said. "That's why I became a lawyer: to promote and vindicate the rule of law."

The Republican-majority committee closed the confirmation hearings eight hours later, after interest groups testified for and against President Bush's nomination of Roberts as chief justice. Despite the strong opposition of several liberal groups, Roberts is universally expected to win confirmation by a solid margin. The committee will vote on his nomination Sept. 22; the full Senate will take it up the following week.

In his final answers to the committee, Roberts cited his career as a lawyer and, for the past two years, as a federal appeals court judge to try to reinforce his testimony from two previous days that he has no political agenda or fixed judicial philosophy.

"If the Constitution says that the little guy should win, the little guy's going to win in court before me," Roberts said. "But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

Answering a question from Sen. Richard Durbin (D-IL), Roberts said he represented clients on both sides of various issues, and had never turned a client away for ethical or moral reasons.

"I appreciate that may sound like I'm a hired gun," Roberts said. "I think that's a disparaging way to regard what is in fact an ennobling truth: that lawyers serve the rule of law."

Loyal Only to the Law, Says Roberts

Earlier, Roberts pointed to the 50 opinions he has written on the federal appeals court bench in Washington to answer a question from Sen. Charles Schumer (D-NY):whether he would be "an ideologue" on the Supreme Court.

"I don't think you can read those opinions and say, 'These are the opinions of an ideologue,'" Roberts said. "That should convince you that I am not an ideologue. And you and I agree that is not the kind of person you want" on the Supreme Court.

Senators got little new information in the final two hours of questioning Roberts before hearing from public witnesses. In an afternoon-long session, some 30 witnesses, evenly divided between people chosen by Republicans or by Democrats, testified before the panel.

Witnesses from liberal women's rights and civil rights groups urged a "No" vote on Roberts, depicting him as opposed to civil rights as a lawyer in the Reagan and first Bush administrations and insensitive to such issues today.

"We have heard nothing to demonstrate his commitment" to civil rights, said Wade Henderson, executive director of the Leadership Conference on Civil Rights.

But several lawyers who worked with Roberts in the solicitor general's office or in private practice -- including some who identified themselves as Democrats -- strongly endorsed Roberts and disputed characterizations of him as hostile to civil rights or ideologically driven.

"There's no hostility there to civil rights," said Dick Thornburgh, who served as attorney general in the first Bush administration while Roberts was principal deputy in the solicitor general's office. "There's a veneration of the rule of law."

The Struggle Over Abortion

The hearing ended on the one issue -- abortion -- that has dominated all discussion of the Supreme Court ever since Justice Sandra Day O'Connor announced her retirement on July 1. Bush originally named Roberts to succeed O'Connor and then decided instead to nominate him to lead the court after the death of Chief Justice William H. Rehnquist on Sept. 3.

O'Connor provided a critical vote in the 1992 decision, Planned Parenthood v. Casey, that reaffirmed but somewhat modified the landmark 1973 abortion rights ruling, Roe v. Wade. Rehnquist dissented in Roe, later voted to overrule the decision, and consistently voted to uphold state and federal laws regulating abortion procedures or limiting government funding for abortions.

With the high court still closely divided on abortion issues, women's groups warned that Roberts could cast the decisive vote in narrowing or overturning those decisions. Under persistent questioning, Roberts would go only so far as to say that the later decision, Casey, is a "precedent entitled to respect" under the legal doctrine known as stare decisis. That doctrine generally calls for upholding past rulings, but it also permits decisions to be thrown out based on consideration of various factors.

"We listened very, very closely, hoping to find some reasons to put our fears to rest," said Marcia Greenberger, co-president of the National Women's Law Center. Greenberger said she heard Roberts give "a very articulate explanation" of the factors in applying stare decisis, but "no indication how he would apply those factors."

Democratic senators made plain throughout the hearing that they shared fears that Roberts will vote against abortion rights if confirmed. But anti-abortion Republican senators wrapped up the late-night session on Thursday by professing no certainty of how Roberts will vote.

"I personally don't know how Judge Roberts stands on that," Sen. Orrin Hatch (R-UT) said. "I don't think anyone does."

Counting the Votes

Roberts won bipartisan praise for his intellect, legal knowledge, and personal charm. But Democrats criticized conservative positions he had taken as a lawyer in the Reagan and first Bush administrations and faulted him for not disavowing any of those views now.

Committee Chairman Arlen Specter (R-PA) and ranking Democrat Patrick Leahy of Vermont both said they would decide how to vote over the weekend and announce their positions early next week. The other nine Republicans on the panel left few doubts that they will vote in Roberts' favor.

Several Democrats took the opportunity in their final questioning of Roberts on Thursday to say that they were still undecided. Schumer used his turn to list three factors in Roberts' favor, including his intellect and his philosophy of "judicial modesty and stability," and three unfavorable factors, including a lack of compassion in his answers on civil rights.

"This is not just a roll of the dice," Schumer said, picking up a phrase used the previous day by Sen. Joseph Biden (D-DE). "This is betting the whole house."

Roberts Offers Clues, Avoids Direct Answers

Posted: September 14th, 2005, 10:00PM EST - Supreme Court nominee John Roberts ended a second long day on the witness stand Wednesday evening with Republican senators confidently predicting his confirmation as chief justice. No Democrats publicly disagreed.

"I've never seen anybody who's done a better job of explaining himself than you," said Sen. Orrin Hatch (R-UT), a veteran of nine previous Senate Judiciary Committee hearings on Supreme Court nominees.

"If people can't vote for you," Hatch said, gesturing toward the Democratic side of the committee, "then they can't vote for any Republican nominee."

For their part, Democrats continued to press Roberts to detail his views on legal issues and to criticize him for refusing to answer directly. But some appeared ready to accept Roberts' confirmation as the nation's 17th chief justice as all but assured.

"We're really rolling the dice with you, judge," said Sen. Joseph Biden (D-DE), who chaired two of the Judiciary Committee's most contentious confirmation hearings, on Justice Clarence Thomas in 1992 and unsuccessful nominee Robert Bork in 1987.

Roberts himself remained in generally good spirits during another seven hours of questioning by the panel's 10 Republicans and eight Democrats. At day's end, Committee Chairman Arlen Specter (R-PA) said there would be another half hour of questions early Thursday before a private session to consider the FBI background report on Roberts. Sessions with public witnesses are to be concluded by the end of the week.

The committee now plans to vote on Roberts' nomination on Thursday, Sept. 22, with a Senate floor vote likely the next week. That schedule would allow Roberts to be in the chief justice's chair when the high court opens its new term on Oct. 3 -- the traditional first Monday in October.

No Answers on Abortion

Roberts offered few new clues about his views on controversial legal issues ranging from abortion to the "right to die." On Tuesday, Roberts had endorsed a constitutional right to privacy and the importance of precedent, but he stopped short of saying whether either principal would apply to abortion rights.

On day two, Roberts turned aside a question by the strongly anti-abortion Sen. Sam Brownback (R-KS). Asked whether an "unborn child" is "a person" or "property," Roberts said, "I don't think it would be appropriate for me to comment one way or another."

Under questioning by Sen. Biden, Roberts also avoided taking a position on whether a legislature could prevent a patient from withdrawing life support.

"I can't answer that in the abstract," Roberts said. "There are cases that come up in exactly that context, so it is in play."

Near the end of the morning session, Biden seemed to speak for many of his Democratic colleagues in expressing frustration with Roberts' answers.

"It's kind of interesting, this Kabuki dance we have in these hearings here," he said, "as if the public doesn't have a right to know what you think about fundamental issues facing them."

A Few Clues on Congressional Reach

Roberts did give senators some slight hints that he will not take a narrow approach to the scope of Congress's power to regulate interstate commerce, nor an unduly deferential attitude toward presidential power.

In discussing two Rehnquist Court decisions striking down congressional statutes as improper assertions of its commerce powers, Roberts pointedly noted that more recent decisions had taken a broader view.

Roberts also distanced himself somewhat from court decisions faulting congressional procedures. "I don't think the court should be the taskmaster of Congress," he said. "The Constitution is the court's taskmaster, and it is the Congress's taskmaster too."

On another question, Roberts -- who has been criticized for taking a broad view of executive authority -- rejected a suggestion from Sen. Dianne Feinstein (D-CA) that he would give "total deference" to the president on foreign policy.

"We don't defer to the president, we don't defer to Congress," Roberts said. "The final decision about what's constitutional is up to the judicial branch."

Civil Rights Redux

Democrats continued to press Roberts for reassurances on civil rights issues; Roberts obliged on some issues, but not on others.

Under close questioning from Sen. Edward M. Kennedy (D-MA), Roberts eventually said he has no present doubts about the constitutionality of a key provision of the Voting Rights Act that Kennedy helped author in 1982.

Roberts wrote a memo as a lawyer in the Reagan administration describing the provision as "constitutionally suspect." After reviewing the memo, however, Roberts said his current view is different. "I have no basis for viewing it as constitutionally suspect, and I don't," he said.

But Roberts refused to repudiate another memo around the same time that criticized the Supreme Court's decision striking down a Texas law allowing school districts to bar admission to children of illegal aliens. The memo is one of the major points cited by Latino groups in opposing Roberts' confirmation.

Roberts said he wrote the memo because the ruling was "inconsistent" with the views of his former boss, Attorney General William French Smith. Only under close questioning did Roberts finally appear to accept the outcome of the case. "I agree, of course, that children should be educated," he said.

Speeches Supplant Questions

By the end of the day, many senators were turning to speeches and self-acknowledged lobbying of Roberts on their favorite issues with no pretense of asking questions. On one of the most volatile issues -- gay marriage -- Sen. Brownback sternly warned against courts' taking control of the subject from legislatures.

"Everybody's now scared what the Supreme Court's going to do," Brownback said. "These are issues properly left to legislative bodies."

Brownback asked no question, and Roberts made no response. Earlier, Roberts declined to give an opinion to a Democratic senator -- Russell Feingold of Wisconsin -- on the constitutionality of proposed federal legislation to prohibit discrimination on the basis of sexual orientation. Roberts offered instead only a personal assurance.

"Personally, I believe everyone should be treated with dignity in this area and with respect," he said.

The Business of the Court

Roberts did give court watchers some intriguing clues about how he will manage the court's business if confirmed. Most significantly perhaps, he volunteered his view that the court should be deciding more cases. Under Rehnquist, the court reduced the number of decisions from around 150 per year in the mid-1980s to around 75 per year more recently.

"I do think there's room for the court to take more cases," Roberts said. "They could contribute more to the uniformity and clarity of the law by taking more cases."

In addition, Roberts indicated -- possibly facetiously -- an open mind on televising Supreme Court proceedings. "My new best friend, Fred Thompson, has assured me that television is nothing to be afraid of," Roberts said, referring to the former senator and current TV actor who is helping shepherd his nomination through the Senate. Roberts also repeated an earlier answer, however, that he has "no set view" on the issue.

A Touch of Humor

The hearings on Wednesday had a more relaxed pace and tone than on Tuesday. Biden, who raised eyebrows on Tuesday by interrupting Roberts' answers, opened on Wednesday, "I promise I won't interrupt if you give short answers." "I'll try, senator," Roberts said with a smile.

Roberts also showed another trace of humor on the stand. When Sen. Tom Coburn (R-OK) asked what Congress could do to make it easier for courts to interpret statutes, he quipped: "Sitting where I am, I am not terribly inclined to be critical."

Roberts Comments on Court Procedures and Precedent, Avoids High-Profile Issues

Posted: September 14th, 2005, 2:07PM EST - Supreme Court nominee John G. Roberts continued Wednesday to avoid taking firm positions on high-profile legal issues, including abortion.

On his second day of close questioning by senators who will decide whether he is to succeed the late Chief Justice William H. Rehnquist, Roberts turned aside a question by the strongly anti-abortion Sen. Sam Brownback (R-KS). Asked whether an unborn child is a person or property, Roberts said, "I don't think it would be appropriate for me to comment one way or another."

Under questioning by Sen. Joseph Biden (D-DE), Roberts also avoided taking a position on the right-to-die issue - specifically, whether a legislature could prevent a patient from withdrawing life support.

"I can't answer that in the abstract," Roberts said. "There are cases that come up in exactly that context, so it is in play."

Near the end of the morning session, Biden seemed to speak for many of his Democratic colleagues in expressing frustration with Roberts' answers.

"It's kind of interesting, this Kabuki dance we have in these hearings here," he said, "as if the public doesn't have a right to know what you think about fundamental issues facing them."

Reading the Tea Leaves

For court watchers, however, Roberts gave some tantalizing clues about how he will handle his role if - as appears an increasing certainty - he is confirmed to be the nation's 17th chief justice.

On one issue, Roberts unequivocally endorsed the use of legislative history to help resolve ambiguities about what a statute means. Justices Antonin Scalia and, to a lesser extent, Clarence Thomas have strongly argued against looking beyond the words of a statute to consider legislative committee reports or debates.

"I have as a judge relied on legislative history to help resolve ambiguity in the text," said Roberts, who was confirmed as a judge on the federal appeals court in Washington two years ago. "I would expect to follow that same approach on the Supreme Court."

Roberts also signaled concern about the multiplicity of separate opinions in some cases. Justices should ask themselves whether writing a concurring opinion is "necessary," Roberts said. "That undermines the importance of providing guidance."

Methodically Rebutting Critics

Roberts appeared to continue making some progress in knocking the props out from under criticism from liberal interest groups and some Democratic senators. Under close questioning from Sen. Edward M. Kennedy, D-Mass., Roberts eventually said he has no present doubts about the constitutionality of a key provision of the Voting Rights Act that Kennedy helped author in 1982.

Roberts wrote a memo as a lawyer in the Reagan administration describing the provision as "constitutionally suspect." After reviewing the memo, however, Roberts said his current view is different. "I have no basis for viewing it as constitutionally suspect, and I don't," he said.

Under earlier questioning by Committee Chairman Arlen Specter (R-PA), Roberts also indicated a broad approach to interpreting general phrases in the Constitution. That would set him at odds again with Scalia and Thomas, who adhere to an "original intent" doctrine in interpreting constitutional provisions.

"I depart from original intent," Roberts said. When framers use broad phrases, he said, "we should hold them to their words."

Later, Roberts also signaled he would adopt a broad approach in determining the kind of "liberty" protected under the Constitution. "I believe that the liberty protected by the Due Process Clause is not limited to freedom from physical restraint," he said. The clause also includes not only procedural rights but also "substantive" protections, Roberts said.

High Court Politics

Roberts hinted Wednesday that he may want the court to take on more work if he is confirmed to be chief justice. The court reduced its caseload by nearly half under Rehnquist, from around 150 decisions per year in the mid-1980s to 75 or so in recent years. It's a trend criticized by some court watchers and private lawyers.

"It seems to me there's a capacity there to hear more cases, not fewer," Roberts said as he answered a question about a memo he wrote in the early 1980s questioning a proposal then to help the court with its workload. "The capacity to hear more cases is there."

In addition, Roberts indicated - possibly facetiously - an open mind on televising Supreme Court proceedings. "My new best friend, Fred Thompson, has assured me that television is nothing to be afraid of," Roberts said, referring to the former senator and current TV actor who is helping shepherd his nomination through the Senate. Roberts repeated an earlier answer, however, that he has "no set view" on the issue.

A Touch of Humor

The hearings on Wednesday had a more relaxed pace and tone than on Tuesday. Biden, who raised eyebrows on Tuesday by interrupting Roberts' answers, opened on Wednesday, "I promise I won't interrupt if you give short answers." "I'll try, senator," Roberts said with a smile.

Roberts also showed another trace of humor on the stand. When Sen. Tom Coburn, R-Okla., asked what Congress could do to make it easier for courts to interpret statutes, Roberts quipped: "Sitting where I am, I am not terribly inclined to be critical." He went on to say that when Congress can address issues more specifically, "it makes it a lot easier for the courts to decide the cases that do come up. If the law is unclear, it makes it that much more difficult."

At midday, Committee Chairman Arlen Specter, R-Pa., repeated his intention to finish public questioning of Roberts on Wednesday. Senators are being given 20 minutes each on their second round of questions. Some Democrats said they want to have a third round.

Senate Democrats Probe Roberts' Views on Abortion, Privacy and Gender-Discrimination

Posted: September 13th, 2005, 9:51PM EST - Supreme Court nominee John Roberts endorsed a constitutional right to privacy Tuesday, but he stopped short of endorsing Supreme Court precedents upholding abortion rights.

Senate Judiciary Committee Chairman Arlen Specter (R-PA) opened the confirmation hearing by describing abortion as "the central issue" for many Americans. And throughout the day, Democrats and Republicans alike probed for hints that Roberts might vote to overrule either of the court's key abortion-rights rulings: Roe v. Wade, the 1973 decision that first established constitutional protection for abortions, or Planned Parenthood v. Casey, the 1992 decision that largely reaffirmed Roe but softened its test for laws regulating abortion procedures.

Roberts repeatedly called the Casey decision a "precedent entitled to respect," but he resisted persistent efforts by Democrats to go further. Republican senators said they were satisfied with the noncommittal stance.

In the second day of an expected weeklong confirmation hearing, Roberts withstood eight hours of questions from 16 of the committee's 18 members in generally good spirits. He raised his voice only a few times -- when Democrats pressed him on memos written while working as a lawyer in the Reagan administration in the 1980s. Nominated to be the 17th chief justice of the United States, Roberts summarized Supreme Court decisions nearly flawlessly while also declining to give his personal opinion of most of the more recent cases.

Supporters praised his performance. "Judge Roberts did a very good job today," said Leonard Leo, executive director of the Federalist Society, who has played a key role in promoting Roberts among conservative groups. Liberal interest groups were more critical. Ralph Neas, president of People for the American Way, which opposes the nomination, said Roberts had been "totally evasive" on the stand.

A Right to Privacy

Roberts repeatedly expressed his view that Americans have a right to privacy. He indicated that he agrees with Supreme Court precedents dating from the 1920s that recognize a right to privacy even though the phrase is not found in the Constitution. And he specifically agreed with the result in a landmark 1965 decision, Griswold v. Connecticut. The decision struck down a law banning the use of contraception by married couples and later formed a basis for the Roe v. Wade decision.

"The right to privacy is protected in the Constitution in various ways," Roberts said. Summarizing Supreme Court decisions over the past 80 years, Roberts said they recognize that "personal privacy is a component of liberty protected under the Due Process Clause."

So as to leave no doubt, when Sen. Dianne Feinstein (D-CA) described privacy as an "implied" right under the Constitution, Roberts signaled a stronger view. "I do not regard it necessarily as an implied right," Roberts said.

The privacy issue had been one of the major lines of criticism by groups opposing President Bush's nomination of Roberts as chief justice. After Roberts' testimony on Tuesday, one of the Democratic senators who had been most critical of Roberts -- New York's Charles Schumer -- said he was "pleasantly surprised" by his answers.

But the issue may not go away entirely. Roberts declined to answer Feinstein's question on how to apply the right to "beginning of life" or "end of life" decisions, saying those were issues "that are coming before the Court in both respects."

A Question of Precedent

Roberts was also less than clear-cut in answering questions about the Supreme Court's abortion rights precedents. He repeatedly acknowledged the importance of respecting past rulings -- the legal doctrine known by the Latin phrase stare decisis -- without directly answering whether he might vote to overrule either abortion decision.

After noting that Casey had "reaffirmed" Roe's "central holding," Roberts said the ruling "is a precedent of the court that is entitled to respect under the principles of >stare decisis."

While acknowledging that precedents are sometimes overturned, Roberts added, "It is a jolt to the legal system to overrule a precedent."

But to Democratic senators, Roberts refused to go further. And he agreed with Republican senators who suggested he had made no commitment one way or another. "I tried as scrupulously as possible to avoid making any commitment about any case that may come before the court," he said.

A Question of Faith

Specter used the abortion issue to touch gingerly on the issue of religion by asking Roberts, a practicing Roman Catholic, whether "your faith" would affect opinions on the bench.

"There is nothing in my personal view based on faith or other sources that would prevent me from applying the precedents of the court faithfully in accord with the principles of stare decisis," Roberts said.

Roberts was later more emphatic in denying any role for religion in deciding cases. "My faith and my religious beliefs do not play a role in my judging," Roberts said. "I look to the law," he continued. "I do not look to the Bible or other religious books."

Torture and Civil Rights

The committee's ranking Democrat, Patrick Leahy of Vermont, focused his opening questions on a recent Bush administration memo claiming the president's power to authorize use of torture if national security required. Roberts distanced himself from the policy.

"I believe that no one is above the law under our system, and that includes the president," Roberts said. "The president is fully bound by the law."

Roberts also distanced himself from a passage in a book by Rehnquist suggesting a relaxed attitude toward civil liberties during wartime. "The Bill of Rights remains the same," Roberts said. "The obligation of the court to protect those liberties in time of peace, in time of war, in times of stress, in time of calm" is not changed.

In subsequent questioning by Sen. Edward M. Kennedy (D-MA), Roberts avoided any criticism of civil rights legislation passed by Congress in the 1980s, but he defended his role in the Reagan administration in arguing for narrower measures. "It was my job to articulate the views of the administration," he said.

Roberts also spoke out strongly against gender discrimination while minimizing the significance of an earlier memo referring to the issue as a "perceived problem."

"Of course, gender discrimination is a particular problem," Roberts told Sen. Joseph Biden (D-DE). "It's a particular concern of mine and always has been."

After noting that his three sisters and his wife all work "outside the home," Roberts added: "I have a young daughter who I hope will have all the opportunities open to her without regard to gender discrimination."

International Law at Issue

Roberts took the conservative side in an ongoing debate among the justices -- and between opposing interest groups -- on the use of foreign and international law in interpreting provisions of the U.S. Constitution. Justice Antonin Scalia has strongly criticized the practice, which a majority of justices have endorsed in recent decisions that prohibited executing juveniles and struck down laws banning gay sex.

Roberts cited "a couple of things that give me concern" about the practice. First, he said, as "a matter of democratic theory," it is questionable to rely on a decision by a foreign judge because "no president accountable to the people appointed that judge, no Senate accountable to the people confirmed that judge."

Second, Roberts said, looking to foreign law "expands the discretion" of a judge. "Relying on foreign precedents doesn't confine judges," Roberts said. "[In] foreign law, you can find anything you want."

Pressing The Commerce Clause and Court TV

Senators on both sides of the aisle pressed Roberts for his view of Rehnquist Court decisions limiting Congress's powers over interstate commerce. In two decisions authored by Rehnquist, the court struck down a law banning guns near schools and a separate statute allowing victims of "gender-motivated violence" to sue their assailants in federal courts.

Schumer pressed Roberts to endorse an earlier court decision, Wickard v. Filburn (1942), that took a broader view of Congress's commerce powers. Roberts declined, noting that the validity of the decision had been argued during the court's recent term in a case involving California's medical marijuana law. But he also said later Rehnquist Court decisions had been more deferential to Congress's powers.

On other issues, Roberts said he had "no settled view" on televising Supreme Court proceedings, but he acknowledged that some of the justices have "particular views" on the subject. Several justices are strongly opposed to allowing cameras in the court.

At The End of the Day

Roberts also showed traces of humor at times. When asked how he would like to be remembered by history, he said, "I would like for them to start by saying, 'He was confirmed.'" He then added, "I would like to be remembered as a good judge."

Roberts resisted ideological labels, saying he prefers to be known as "a modest judge." Specifically asked whether he would be in the mold of Rehnquist, Roberts said: "I will be my own man. I hesitate to be put in anyone's mold."

Roberts' Nomination Hearing Begins

Posted: September 12th, 2005, 12:49PM EST - Supreme Court nominee John G. Roberts, Jr. presented himself to the Senate Judiciary Committee on Monday as a judge with no platform except a commitment to the rule of law and the high court's own independence and integrity.

"A certain humility should characterize the judicial role," Roberts told the 10 Republicans and eight Democrats on the committee. "Judges and justices are servants of the law, not the other way around."

President Bush's choice to be Chief Justice of the United States spoke without notes for about seven minutes after nearly three hours of opening statements from the committee members who will make the initial decision on his elevation from the federal appeals court in Washington to the highest court in the land. The panel will begin putting questions to Roberts on Tuesday morning.

Democrats served notice they will press the former Reagan and first Bush administration lawyer to be forthcoming about his judicial philosophy, including his views on civil rights, women's rights, privacy, church and state, and separation of powers. Republicans counseled Roberts to be circumspect and to refuse to give answers or hints about how he would rule on cases to come before the court.

In his own remarks Monday, Roberts was gracious, but remained general in describing his own concept of the role of the judiciary. He said his meetings with committee members -- among the 53 senators he met with all told -- had given him a "better understanding" of the committee's concerns in the confirmation process.

While senators described him as a conservative advocate of judicial restraint, Roberts avoided any ideological or philosophical label. "I come before the committee with no agenda," he said. "I have no platform."

"I have no agenda, but I do have a commitment," Roberts continued. "If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability."

Roberts concluded by promising if confirmed to be "vigilant to protect the independence and integrity of the Supreme Court" and to "work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans."

If confirmed, Roberts would be the 17th Chief Justice of the United States and succeed William H. Rehnquist, whom Roberts served as law clerk in the court's 1980-81 term. Rehnquist died on Sept. 3 after a nearly year-long fight with thyroid cancer. Bush had originally named Roberts to succeed the retiring Justice Sandra Day O'Connor, but chose him instead for the chief justice's post two days after Rehnquist's death.

In Monday's hearing, Republicans had high praise for Roberts' abilities and his record as a government lawyer and then as a preeminent Supreme Court litigator in private practice. Bush named him to the federal appeals court for Washington in 2001, but judicial politics delayed his confirmation until May 2003.

None of the GOP senators voiced concerns on Monday about Roberts' views, though some of the junior members criticized recent Supreme Court decisions in such areas as abortion, church and state, capital punishment and property rights. Instead, they spent most of their time anticipating likely controversy over Roberts' answers or non-answers to Democrats' questions.

"Some have said that nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people," said Sen. Orrin Hatch, R-Utah. "Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment. These might be catchy sound bites, but they are patently false."

"You have no obligation to tell us how you will rule on any issue that might come before you if you sit on the Supreme Court," said Sen. John Cornyn, R-Texas.

Several Democrats voiced strong concerns about conservative views Roberts had expressed while serving in the Reagan Justice Department and White House from 1981 to 1986. Among the 70,000 documents the White House has released from that period are Roberts' memos questioning the right to privacy, opposing affirmative action, minimizing discrimination against women, and endorsing limits on judicial tenure and the Supreme Court's powers.

"There are real and serious reasons to be deeply concerned about Judge Roberts' record," Sen. Edward M. Kennedy, D-Mass., said. Kennedy, the committee's senior member, played a pivotal role in the Senate's most recent rejection of a Supreme Court nominee: Robert Bork in 1987.

The committee's lone woman -- Democrat Dianne Feinstein of California -- specifically focused on the landmark 1973 abortion rights decision, Roe v. Wade. "It would be very difficult for me to vote to confirm someone to the Supreme Court whom I knew would overturn Roe v. Wade," she said.

Sen. Charles Schumer, D-N.Y., followed by threatening to vote "no" if Roberts avoided direct answers in what is now scheduled as two rounds of questioning by each senator on Tuesday and Wednesday. "You need to answer questions fully so we can ascertain your judicial philosophy," Schumer said.

Schumer, Kennedy and Illinois' Richard Durbin were the three committee members to vote against Roberts' confirmation for the appeals court post. Roberts went on to win Senate confirmation by unanimous consent without a recorded vote.

Democrats also pressed their requests for documents that the White House has refused to release, concerning cases that Roberts handled as the chief deputy solicitor general in the first Bush administration. Roberts appeared to be trying to assuage some of the Democrats' concerns about his previous views by noting in his statement that as a government lawyer, "My job was to argue cases for the United States before the Supreme Court."

Committee Chairman Arlen Specter of Pennsylvania, sometimes a GOP maverick, vowed to conduct the hearing in "a full, fair, and dignified" manner. Other Republicans warned that liberal interest groups would try to politicize the hearings. But the committee's ranking Democrat, Patrick Leahy of Vermont, said "open and honest public conversation" with Roberts was "an important part" of the confirmation process.

Schumer provided perhaps the only new piece of information at the hearing, which, miraculously, ended 20 minutes ahead of schedule. In a portion of his prepared statement he did not deliver because of time constraints, the New York senator suggested Roberts may have had a change of heart on the privacy issue. Schumer said that despite Roberts' earlier statements referring to a "so-called right to privacy," the nominee said in their private meeting that he now believes that there is a "right of privacy that extends to the bedroom."

At 50, Roberts would be the youngest member of the court if confirmed -- and the youngest chief justice since John Marshall assumed the post at age 45 in 1801. Roberts is also younger than all but two of the Judiciary Committee members -- Republicans Lindsey Graham of South Carolina and Sam Brownback of Kansas.

Roberts ended his statement Monday by telling the senators, "I look forward to your questions." Some Republicans suggested the experience would be less than enjoyable. "Welcome to the pit," Iowa's Chuck Grassley said.

The hearing resumes at 9:30 Tuesday morning.

Roberts Nominated as Chief Justice

Posted: September 5th, 2005, 4:35PM EST - President Bush acted quickly to nominate federal appeals court Judge John G. Roberts Jr. to succeed Chief Justice William H. Rehnquist. Roberts had been poised to begin confirmation hearings to succeed retiring Justice Sandra Day O'Connor -- hearings that were widely anticipated to result in a strong vote of approval.

Then, Rehnquist's death late Saturday night after a nearly year-long battle with thyroid cancer created a second opening on the high court.

Facing criticism for his handling of hurricane Katrina and the situation in Iraq, Mr. Bush decided to elevate Roberts. In doing so, he passed over two conservative but controversial Supreme Court justices he has praised in the past: Antonin Scalia and Clarence Thomas.

Mr. Bush stressed the need to have a chief justice in place when the high court reconvenes on Oct. 3.

"The Senate is well along in the process of considering Judge Roberts' qualifications," Bush said. "They know his record and his fidelity to the law. I'm confident that the Senate can complete hearings and confirm him as chief justice within a month."

Bush's move could mean that the court would have nine justices in place when the new term opens in four weeks. In announcing her retirement on July 1, O'Connor had said she would defer stepping down until after the confirmation of her successor. She has been participating in the court's business during its summer recess.

With the increased importance of the nomination, Roberts will face tougher scrutiny when he goes before the Senate Judiciary Committee. The chief justice presides over the justices' private conferences to select cases for review and discuss opinions after arguments. He also assigns opinions when he is in the majority.

But Roberts' impressive legal credentials coupled with Republican unity in the GOP-controlled Senate suggest he will remain in good stead with the committee.

In addition, by succeeding Rehnquist rather than O'Connor, Roberts would replace one conservative vote with another. O'Connor was a pivotal swing vote during her 24 years on the court, raising the stakes for both parties on Mr. Bush's next nomination. President Bush gave no immediate indication of when he would choose a nominee for that vacancy.

The Confirmation Process

At age 50, Roberts would become the youngest chief justice in more than 200 years and could help steer the court in a conservative direction for two decades or longer.

Democrats had been laying the groundwork for close questioning of Roberts on conservative positions he took as a lawyer in the Reagan and first Bush administrations on such issues as abortion, women's rights, civil rights, and school prayer.

Nearly two months after his initial nomination, however, no Democrats had formally vowed to vote against Roberts in committee or on the Senate floor. And no Republicans had signaled any likelihood of breaking ranks to vote against Bush's choice for the first vacancy on the high court in 11 years.

The leading liberal interest group working against Roberts' nomination responded to Bush's announcement Monday morning by promising again to "vigorously" oppose his confirmation because of his views on civil rights and other issues. When the hearings begin, they will start with opening statements of up to 10 minutes from each of the panel's 18 members: 10 Republicans and eight Democrats. Roberts will then make a brief opening statement -- his first detailed public remarks since Bush nominated him for the court on July 19.

Following Roberts' statement, questioning will begin, likely the following day. The committee's Republican chairman, Arlen Specter of Pennsylvania, will open the questioning, followed by ranking Democrat, Vermont's Patrick Leahy. Senators will have 30 minutes each for questions in the first round and 20 minutes for a second round.

Unless there are additional rounds, the committee will then meet in private to consider Roberts' FBI background check. The panel will then take testimony in open session from 30 public witnesses -- 15 chosen by Republicans and 15 by Democrats.

Democrats to Question the Roberts Record

Roberts had a stellar legal career as a Harvard law student, clerk to then-Associate Justice Rehnquist, government lawyer and private attorney before taking a seat two years ago on the federal appeals court in Washington.

Democrats were expected to closely question Roberts, however, about his record while serving in the Reagan administration as a special assistant to Attorney General William French Smith and then as associate White House counsel.

In various memos, Roberts described the Roe v. Wade abortion rights decision as "unprincipled" and questioned the legal basis for a right to privacy. He criticized racial preferences in college admissions, opposed strengthening the federal Voting Rights Act and supported legislation to prohibit federal court-ordered school busing. He also opposed the controversial "comparable worth" theory aimed at reducing the pay gap for women. And in one memo he described a Supreme Court decision invalidating a state law mandating a moment of silence in public school classrooms as "indefensible."

Democrats were also planning to question Roberts about his work while serving as chief deputy to Solicitor General Kenneth Starr under the first President Bush. Among the many cases he handled during those four years, Roberts signed one Supreme Court brief restating the administration's position in favor of overturning Roe v. Wade.

Democrats asked for release of memos that Roberts wrote on that case and 15 others, but the White House said the documents were covered by attorney-client privilege and releasing them would set a bad precedent. On Monday, People for the American Way again called for releasing the documents.

Former President Bush nominated Roberts in 1992 for a seat on the federal appeals court in Washington, but the Democratic-controlled Senate did not act on the nomination. Roberts then joined a big Washington law firm, where he continued handling Supreme Court cases for business or state government clients. All told, Roberts has argued 39 cases before the high court; his side won 25 times.

The current President Bush included Roberts in his first batch of federal appeals court nominations in May 2001, but his confirmation was delayed by partisan divisions between the White House and Senate Democrats until May 2003. In his confirmation hearing at that time, Roberts said he recognized Roe v. Wade as "binding precedent."

Supporters say Roberts' record as a judge shows he is judicious and non-ideological. Opponents see some signs of judicial activism -- notably, in one decision questioning the constitutionality of the federal Endangered Species Act.

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