Secretive Roberts.....What WILL HE DO?

Fireworks at Roberts confirmation hearings
Biden accuses him of not being forthright on privacy
- Bob Egelko, Chronicle Staff Writer
Wednesday, September 14, 2005

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(09-14) 11:53 PDT Washington (SF Chronicle) --

Chief justice nominee John Roberts’ refusal today to spell out his position on the scope of constitutionally protected privacy or the right to die led an angry Democratic senator to accuse him of forcing lawmakers to cast a blind vote on his confirmation.

“Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, judge,’’ Sen. Joseph Biden, D-Del., told Roberts Wednesday on the third day of his Senate Judiciary Committee confirmation hearing.

Roberts, a federal appeals court judge nominated by President Bush to succeed the late Chief Justice William Rehnquist, countered that he is ethically forbidden to comment on any issue likely to reach the Supreme Court. The court is scheduled next month to consider the Bush administration’s attempt to nullify an Oregon law that allows doctors to prescribe lethal medication to terminally ill patients who ask for it.

“The litigants before me are entitled to have a justice with an open mind deciding their case,’’ Roberts said.

Roberts, 50, who would become the youngest chief justice in 200 years, gave the same explanation he gave Tuesday in declining to say whether he agreed with the Roe vs. Wade abortion rights ruling or other past decisions raising issues that might return to the court.

At today’s hearing, he similarly rebuffed a senator’s query about the Bush vs. Gore case that settled the 2000 presidential election, saying he didn’t want to reveal his views on any future election challenge that wound up in the court.

Roberts rejected Biden’s entreaty to “talk to me as a father’’ about the possibility of removing life support from a comatose family member, saying, “I won’t take to the court whatever personal views I have on those issues. They’ll be based on my understanding of the law.’’

The exchange followed Roberts’ statement Tuesday that he accepts the Supreme Court’s conclusion that the Constitution protects the right to privacy, despite a memo he wrote as a government lawyer more than 20 years ago that referred to a “so-called right to privacy.’’ That right, declared by the court in a 1965 case, is the underpinning of Roe vs. Wade as well as the 2003 gay-rights ruling striking down state criminal laws restricting private sexual conduct.

But Roberts didn’t say whether he defined privacy narrowly or broadly, and blurred the picture further by saying that the privacy right he accepts is endorsed by every current Supreme Court justice “to some extent or another.’’ Biden noted that the views of the remaining eight justices vary widely – some agreeing that privacy extends to the decisions to have an abortion or refuse life-sustaining medical care, and others, such as Justice Antonin Scalia, strongly disagreeing.

When Roberts said he would decide the scope of privacy by examining “the nation’s history, traditions and practices,’’ Biden said Scalia and more liberal justices used the same test.

By refusing to spell out how he would approach the issue, Biden said, Roberts is acting “as if the public doesn’t have a right to know what you think about fundamental issues.’’

Senators who followed a similar course could never be elected, Biden said, and the authors of the Constitution couldn’t have meant to allow judges to conceal their views before being confirmed to lifetime positions.

“Judges don’t stand for election,’’ Roberts retorted.

The judiciary committee is expected to finish its hearings by Friday, setting up a vote next week. While analysts expect most, if not all, of the eight Democrats on the 18-member committee to oppose Roberts, he is expected to win confirmation by the full Senate sometime later this month. Republicans hold 55 seats in the 100-member Senate to 44 Democrats and one independent.

Bush initially nominated Roberts to succeed retiring Justice Sandra Day O’Connor, but chose Roberts for the chief justice post after Rehnquist died Sept. 3. Roberts is a former lawyer for the Reagan and George H.W. Bush administrations and argued cases before the Supreme Court as a private lawyer before joining the federal Court of Appeals for the District of Columbia circuit in May 2003.

On another issue today, Roberts suggested he would not necessarily accept the government’s claim of the need to exclude the public and the news media from certain events.

Sen. Patrick Leahy, D-Vt., said the Bush administration has carried secrecy to unprecedented lengths, barring the media from photographing coffins of soldiers killed in Iraq, opposing disclosure of pictures of abuses in military prisons and recently trying to discourage photographing victims of Hurricane Katrina.

Roberts said he didn’t think secrecy would be justified simply because the government thought an event was inappropriate for public view.

“I do start with a general principle in this area,’’ he said, paraphrasing the late Justice Louis Brandeis’ statement that sunshine was the best disinfectant. The framers of the Constitution, who guaranteed freedom of speech, “appreciated the benefits of public awareness,’’ he said.


URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/09/14/MNroberts14.DTL
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