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The Honolulu Advertiser
Posted on: Sunday, September 18, 2005

COMMENTARY
'Referee' Roberts plays dodgeball

By Chuck Raasch

Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa., left, and Sen. Patrick Leahy, D-Vt., ranking Democrat on the committee, review notes during the confirmation hearing for John Roberts.

Photos by CHARLES DHARAPAK | Associated Press

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There should be no mystery over what the "G" in chief justice nominee John G. Roberts stands for: "Guarded."

As in "cautious and prudent" — seemingly the nominee's favorite words. In a city that's pushed slash-and-burn politics to new frontiers, Roberts' hearings before the Judiciary Committee have been revealing, showing how nuance, code words and parrying still can dominate and frustrate. Have they been useful? We'll take the Roberts road here: Yes and no.

Yes, because this committee, which may have done more than anything to spark the culture wars of the 1990s with its sensational and X-rated hearings over Justice Clarence Thomas, provided a civics lesson in how the two different branches of government check each other. The hothouse legislative atmosphere of Congress, as represented by senators who could barely sit in their seats, squared off against the cool and dispassionate judge, representing the judicial branch. If there ever was a human metaphor for the brilliance of the checks and balances in the Constitution, it played out last week.

No, in the sense that after nearly a week of intense verbal skirmishing, we do not know much more about this judge's views on issues that affect every American. And what we do know, we found out largely by reading between the lines.

Over four days of back-and-forth with senators, "the right to privacy" became code for the perennially public debate over abortion. While Roberts agreed that the major court decisions that permit but restrict abortion were strong precedents, he gave no firm indication of how he'd rule in the future. And that's the kind of judicial restraint and objectivity that the Constitution demands, he said.

"Judges are not politicians," Roberts, 50, said. "They cannot promise to do certain things in exchange for votes."

Roberts so often deflected senators' questions about issues that might come before the court that by the end of four days, some Democrats were finishing his answers for him. Sen. Dianne Feinstein, D-Calif., who often came across as the fairest and most diplomatic on her side, asked with resignation whether a woman had a right to terminate her own pregnancy.

When Roberts started to deflect the question by saying that "that is an area ... " Feinstein quickly interjected, "apt to come before you." And the matter died.

Some Democratic senators — especially Joe Biden of Delaware and Edward Kennedy of Massachusetts — so dominated their allotted question time with their own thoughts or lengthy prefaces they left little time for Roberts to respond. Biden chewed up six minutes and 40 seconds of his opening 30-minute question slot with a rambling opening statement, then chided Roberts later for "filibustering."

Given the nominee's strategy going in — portraying himself as a man of character, with a stout belief that judges should be referees, not players — the Democrats' verbosity played directly into his hand. Mostly, Roberts sat intently, often smiling, through the Democrats' nostalgic lectures about the good old days.

As President Bush's choice to replace the late Chief Justice William Rehnquist tiptoes toward what appears to be inevitable confirmation, not much more has been learned about the nominee than the people questioning him. But Roberts' Senate Judiciary Committee hearings did provide a fascinating and often revelatory view of the wide differences that remain between the left and right in American politics.

Liberals, sometimes weary, sometimes indignant, kept returning to the civil rights battles of the 1960s. They were largely frustrated by a nominee who, citing the need for judicial independence and fairness, danced around questions that spanned the beginning of life to the end.

"We're rolling the dice with you, judge," an irked Biden said, his gritted-teeth smile saying anything but let's-be-friends. As the hearings proceeded, Biden, who has presidential aspirations, tried hardest to engage Roberts on a personal front. In a particularly pointed exchange over the right to die, Biden coaxed: "Talk to me as a father."

Roberts, ever the jurist, responded that he would not "consider issues like that in the context of a husband or father."

Sen. Sam Brownback, R-Kansas, who is entertaining thoughts of running for president, cautioned Roberts that he may confront a liberal assault on traditional marriage if he sits on the court.

Brownback warned of a "firestorm" if traditionally defined marriage "is picked up and stomped on" by federal judges.

Indeed, judicial firestorms are ahead. The new court has a right-to-die case waiting when it opens in October. In the midst of the hearings, word came in that a federal judge in San Francisco had ruled that reciting the Pledge of Allegiance in schools was unconstitutional because of its "under God" language. These hearings were the calm before that storm.

Chief justice nominee John Roberts, right, testified on Capitol Hill last week during his confirmation hearings before the Senate Judiciary Committee. Roberts frustrated senators by mostly deflecting their questions about issues that may come before the court.