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Roberts sidesteps questions on pledge, eminent domain

Biden: 'We are rolling the dice with you, judge'

From Bill Mears
CNN

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Judge Roberts answers questions Wednesday, the third day of his confirmation hearings.

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WASHINGTON (CNN) -- Timely social issues dominated a marathon third day of confirmation hearings for chief justice nominee John Roberts, who told lawmakers the Supreme Court should try to reach some "consistency" in dealing with thorny church-state disputes.

The 50-year-old federal appeals judge also sparred with lawmakers over Hurricane Katrina, property takings, abortion and patient rights, all which have been in headlines in recent months.

Roberts was asked about a federal court ruling Wednesday that banned reciting the Pledge of Allegiance in public schools because it contains the words "under God." Less than half an hour after a U.S. District Court judge in California issued his opinion, Roberts told Sen. Jeff Sessions, R-Alabama, that the high court has often been at odds over interpreting the Constitution's prohibition of government "endorsement" of religion. The justices in June issued conflicting opinions on whether the Ten Commandments could be posted on public property.

On this and the Pledge case, Roberts said, "That is an area in which I think the court can redouble its efforts to try to come to some consistency in its approach."

Following Wednesday's 11-hour session, the judge is slated to appear before the committee again Thursday morning, with Democrats running out of chances to press him on a range of hot-button issues.

Despite a few testy exchanges over the past two days, Roberts has been able to deflect tough questions about his philosophy and rulings.

He had earlier suggested senators and their state counterparts have the power to turn back a controversial Supreme Court ruling over property rights, noting legislatures "are protectors of the people's rights."

A controversial 5-4 ruling in June allowed governments to seize private property and turn it over to private developers, under eminent domain, as a "public use" benefiting local economies. Critics of the decision said it favored big business and trampled on individual rights.

Roberts would not say whether he considered the ruling appropriate, but he told Sen. Sam Brownback, R-Kansas, "The court was saying there is this power, and it is up to the legislature to decide if this power is available. It leaves the ball in the legislature." (Watch Roberts' response to eminent domain questions -- 5:56)

The nominee's statements reflected his earlier comments that courts should not try to solve all of society's problems; that "the judges' role is limited, and you do not make the law."

As a result of the recent decision, Congress and some state legislatures have begun work on bills limiting the power of governments to seize land.

The committee is expected to vote next week on whether to recommend Roberts' nomination to the full Senate.

Media access

The cleanup and recovery from Hurricane Katrina prompted questions on a reporter's ability to report and photograph devastated areas, with Roberts generally siding with transparency.

Vermont Sen. Patrick Leahy, the panel's ranking Democrat, asked Roberts whether the Bush administration should control access by the news media. "Suppose they felt that the rescue operations of the government, whether it's state, local or federal, was being handled in an inept way, or evacuees are being mistreated. Does that give them a right to bar the media, who may want to expose that?"

Roberts replied there were some instances where the news media could be barred, but, "If it's a situation in which the public is being given access, you can't discriminate against the media and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public."

The judge politely endured emotional remarks by Sen. Arlen Specter, R-Pennsylvania, the committee chairman, who criticized what he called "denigrating comments" about Congress by some members of the high court.

He singled out Justice Antonin Scalia, a conservative whose views differ from those of the more moderate Specter. The senator said Scalia and other judges were acting as "taskmasters," and lawmakers "were being treated as schoolchildren."

Roberts reaffirmed his respect for Congress, saying that, as chief justice, he would "appreciate the difference in institutional competence between the legislature and the courts."

Abortion questions deflected

On the issue of abortion, Roberts deflected two conservative lawmakers' attempts to pin him down on his definition of when life begins, which could prove the basis of a future court challenge on the rights of fetuses. The judge reiterated his refusal to comment on cases that may come before him.

He was similarly non-committal over the rights of terminally ill people to end their lives with the help of their doctors, a case that will be argued in October by the Supreme Court.

The broader issue of patient rights gained national attention earlier this year in the case of Terri Schiavo, a brain-damaged Florida woman. Family members fought over whether to remove her feeding tube, which state courts eventually allowed her husband to do.

Sen. Joseph Biden, D-Delaware, expressed frustration for a second day over Roberts' answers, pressing him for his personal and judicial views on the issue.

"With all due respect, you've told me nothing," Biden said. "It's kind of interesting, this kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them."

"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," he added.

That sentiment was echoed by Sen. Charles Schumer, D-New York, who told Roberts, "Why this room should be a cone of silence is beyond me." He added, "You'll answer only as many questions as necessary to get confirmed. It's not the right thing to do."

Several Republicans praised Roberts' intellect and work as a federal judge and government lawyer. Sen. Jon Kyl, R-Arizona, told Roberts he would vote for him.

But Planned Parenthood, an abortion-rights group, announced Wednesday it would oppose Roberts' nomination, saying in a statement he was "unfit to occupy the most important position on the court."

On the issue of capital punishment, Roberts said, in a hypothetical case, he would cast the deciding vote to grant a stay of execution, and allow a death row inmate to continue his appeals. Roberts said "it makes a lot of sense" to give prisoners in capital cases greater leeway to contest their sentences.

In his two years on the U.S. Circuit Court of Appeals for the District of Columbia, Roberts has heard no death penalty cases.

Roberts said that, if confirmed as head of the nine-member bench, he would try to reach across the ideological spectrum. "I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me."

Originally nominated in July to fill the vacancy that was to be created by the announced retirement of Justice Sandra Day O'Connor, Roberts was asked this month by President Bush to fill the top spot on the nine-member court, following the death of Chief Justice William Rehnquist. Roberts would have a lifetime seat on the high court if confirmed.

Specter has said he wants final Senate action before the Supreme Court begins its fall term on October 3.

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