Chicago Tribune

WASHINGTON – Pledging to confront every case with an “open mind,” Supreme Court nominee Judge John G. Roberts Jr. said Monday he would listen to the “considered views” of his colleagues and be vigilant in protecting the court’s independence and integrity if confirmed as the nation’s 17th chief justice.

In opening remarks on the first day of hearings before the Senate Judiciary Committee, Roberts said he had “no agenda … no platform,” but instead a commitment to judge fairly, “according to the rule of law without fear or favor.”

He emphasized that he saw a limited role for courts and said judges should approach their work with modesty and humility. He used a baseball analogy: Judges are like umpires, calling balls and strikes.

“They make sure everybody plays by the rules, but it is a limited role; nobody ever went to a ballgame to see the umpire,” Roberts said. “Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath.”

Roberts’ comments, made without notes, came at the end of a day of formality, as senators gave prepared remarks in the Beaux-Arts splendor of the Russell Senate Office Building’s Caucus Room. The hearings are the first in 11 years for a Supreme Court nominee and the first in 19 for a chief justice, but Monday’s session was oddly subdued.

With the nation focused on the devastation on the Gulf Coast – and with a second nomination to replace Justice Sandra Day O’Connor around the corner – even some Democrats indicated Roberts’ hearings had lost some of their urgency.

Still, the opening statements reflected deep divisions in the 19-member committee, not only on Roberts as a nominee, but on the very terms of the debate and the type of responses Roberts should give. Although he is widely expected to be confirmed to replace conservative Chief Justice William Rehnquist, that divide suggests Roberts will encounter tough questioning Tuesday and Wednesday. It also paves the way for a bitter battle over the replacement for O’Connor, whose vote often determined how the court would rule in controversial, closely divided cases.

“This is a confirmation proceeding, not a coronation,” said Sen. Russell Feingold, D-Wis.

Senators used their opening statements Monday to lay the groundwork for their questions. Most Democrats emphasized the role of the courts in protecting liberty and civil rights, indicating they will focus on civil rights, women’s rights, the right to privacy and the scope of federal power.

They also made clear they would keep pressuring the White House to release documents from Roberts’ tenure as a political appointee in the solicitor general’s office, which represents the U.S. government in cases before the Supreme Court. The White House, backed by previous solicitors general, consistently has refused the documents.

“We can only wonder what they don’t want us to know,” said Sen. Edward Kennedy, D-Mass.

Republicans, for their part, initially focused more on the process, drawing lines they thought Roberts should not be required to cross in his answers to senators’ questions.

“Just because we are curious does not mean that our curiosity should be satisfied,” said Sen. John Cornyn, R-Texas. “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.”

Roberts, who went to his office in the U.S. Court of Appeals for the D.C. Circuit Monday morning before coming to the noon hearing, sat alone facing the senators as they made their remarks. His wife, Jane, his parents and sisters and other family members and friends sat behind him.

His children, Josephine, 5, and Jack, 4, made a brief appearance at the beginning of the hearing, and they sat by their mother when Roberts introduced them.

“You see she has a very tight grasp around Jack,” Roberts told the committee with a smile, a reference to a July 19 news conference when the 4-year-old made an impression by dancing and smiling as President Bush introduced his father to the nation.

As Roberts sat impassively, Republican and Democratic senators often talked about the same episode and used the same terms but drew entirely different meanings from them. Senators on both sides, for example, urged Roberts to follow the example set by Justice Ruth Bader Ginsburg in her 1993 hearings.

Republicans noted that she politely refused to answer more than 60 questions on cases that could come before her as a justice. Democrats, on the other hand, saw her testimony as forthcoming, particularly in signaling that she personally supported a woman’s right to abortion.

Even commonly used terms came to mean different things. Both sides were highly critical of “activist” decisions by the Supreme Court. But Democrats saw activism in decisions striking down federal laws. Republicans saw activism in decisions on social issues they believed were properly reserved to legislatures.

Sen. Dianne Feinstein, D-Calif., told Roberts she believed she had an additional duty to closely examine his views as the only woman on the committee. In her statement, she traced the fight for women’s rights dating to the early years of the United States, and she said she would focus on seeing that the “hard-earned autonomy of women is protected.”

Feinstein said the most important issue she would explore in her questioning of Roberts was the right to privacy, the legal underpinning for the landmark 1973 Roe v. Wade decision, which said a woman has a constitutional right to an abortion. She spoke in stark terms about her memories of a time when abortions were illegal, telling of college classmates who went to Mexico for the procedure and of a woman who killed herself when she learned she was pregnant.

Roberts’ views on abortion are unknown, and, like previous court nominees, he will not discuss his views on the legal reasoning in Roe v. Wade. But in a memo from his service in the Reagan administration, he wrote of the “so-called right to privacy,” and that has alarmed groups that support abortion rights.

But Sen. Tom Coburn, R-Okla., delivered a powerful counterpoint to Feinstein. Coburn became emotional as he discussed the deep ideological divisions in the country and the problems facing the nation. He alluded to Roe, suggesting that the court had usurped the role of legislatures to make important decisions.

“A super-legislator body is not what the court was intended to be,” Coburn said. “When I ponder our country and its greatness, its weakness, its potential, my heart aches for less divisiveness, less polarization, less finger-pointing, less bitterness, less mindless partisanship.”

Many of the senators were, in fact, more critical of the Supreme Court than of Roberts. One after another, Republicans and Democrats made clear their displeasure with recent rulings.

Democrats focused on decisions that scaled back congressional power. In a series of 5-4 decisions, the court has struck down a number of federal laws, ruling that Congress exceed its authority under the Constitution and intruded on areas traditionally handled by states.

In an attempt to make the point more clear, several Democrats, including Kennedy, raised the specter of Hurricane Katrina to argue against court decisions scaling back federal power. They said they will want to know whether Roberts agrees.

In Roberts’ remarks as the hearing drew to a close, the nominee conjured up images from his Indiana childhood. He spoke in vivid, personal terms about the role of judges in ensuring that America’s possibilities remain as unlimited as the “endless fields of Indiana stretching to the horizon.”

His youthful memory of Indiana’s fields “inspires in me a very profound commitment,” Roberts said. “I will work to ensure that (the court) upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.”

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