- The Washington Times - Wednesday, July 27, 2005

Two key Senate Democrats yesterday said that federal Judge John G. Roberts Jr. will have a hard time being confirmed to the Supreme Court if he doesn’t publicly state his position on past court cases such as the one that established abortion rights.

Vermont Sen. Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, said he doubts that Judge Roberts can be confirmed unless he agrees that Roe v. Wade — the 1973 abortion case — is “settled law.”

And in a speech yesterday at the National Press Club, Sen. Charles E. Schumer, New York Democrat and committee member, listed three “troubling” pitfalls that could upend Judge Roberts’ nomination. The No. 2 pitfall was Judge Roberts’ reluctance to discuss specific Supreme Court cases — even ones that might resurface before the court.

Republicans responded that the statements were hypocritical and called the comments proof that some Democrats are using a single-issue “litmus test” to determine Judge Roberts’ fitness for the bench.

The Republican National Committee (RNC) issued a press statement accompanied by several quotes condemning litmus tests made by Mr. Leahy when President Clinton, a fellow Democrat, was in the White House.

“Senator Leahy’s eagerness to embrace the very litmus tests he has opposed in the past is the height of hypocrisy,” RNC Chairman Ken Mehlman said. “It is clear that Senator Leahy is more concerned with appeasing the left wing of his party than giving John Roberts a fair confirmation hearing.”

In an interview broadcast yesterday on Vermont Public Radio, Mr. Leahy said he would vote against Judge Roberts if he determines that the nominee would pursue the same “active” agenda as conservative Justices Antonin Scalia and Clarence Thomas.

“I want to find out if he’s going to be as active as this — as people like Justice Scalia and Justice Thomas, who have almost willy-nilly overruled things,” he said, according to an Associated Press report from Vermont.

Specifically, Mr. Leahy said, Judge Roberts will have a hard time being confirmed if he doesn’t pledge to uphold Roe v. Wade, which declared abortion a constitutional right.

“I don’t see how somebody who said they didn’t consider Roe v. Wade settled law … I don’t see how they get confirmed,” he said. Mr. Leahy compared the primacy of Roe to Brown v. Board of Education, which outlawed racial segregation.

During his speech yesterday, Mr. Schumer worried about “Judge Roberts’ continuing concerns about answering questions, particularly answering his views about decided Supreme Court cases.”

“Most opinion leaders and scholars think that asking a nominee to answer questions about a specific, already decided Supreme Court case is an appropriate line of questioning,” he said. “It would go a long way to creating a smooth and quicker-moving process if Judge Roberts were to decide to answer those questions.”

Sen. John Cornyn, Texas Republican and member of the Judiciary Committee, said yesterday that requiring Judge Roberts to answer questions about Roe v. Wade or other cases would force him to prejudge future cases that will come before the court. He cited Ayotte v. Planned Parenthood, a case already on the docket for the next term that involves the constitutionality of a New Hampshire law requiring a minor to notify her parents before having an abortion.

“It is nearly certain that some party in that litigation … will ask the court to revisit or overturn Roe v. Wade because one party does so in nearly every abortion case that reaches the U.S. Supreme Court,” Mr. Cornyn said. “Thus, whether Roe v. Wade should be overturned is not only an issue likely to come before the court during Judge Roberts’ tenure, it is already before the court.”

Republicans also dug up a trove of quotes from sitting justices who cited the same reason in declining to answer such questions during their confirmation hearings.

One quote was from Justice Ruth Bader Ginsburg: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process,” she said during her 1993 confirmation hearings.

Justice Ginsburg, a pioneering feminist lawyer who had founded Women’s Rights Project of the American Civil Liberties Union, was confirmed by a 96-3 Senate vote less than two months after President Clinton nominated her.

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