- The Washington Times - Wednesday, September 14, 2005

Federal Judge John G. Roberts Jr. told senators yesterday that laws restricting the government’s power of eminent domain are legitimate, despite a landmark Supreme Court decision earlier this year that broadly expanded that authority.

“The court was not saying, ‘You have to have this power, you have to exercise this power,’” Judge Roberts told the Senate Judiciary Committee. “That leaves the ball in the court of the legislature.”

Judge Roberts, nominated to be the next chief justice of the Supreme Court, finished a second day of testimony yesterday with a few flare-ups, but no major upsets.

The hearings have been so devoid of fireworks that Senate staffers are having a hard time keeping the limited public seating area filled. There also have not been the major protests that normally accompany Supreme Court confirmation hearings.

Judge Roberts is slated to sit before the committee for a final round of questions this morning at the request of Democrats on the panel.

Yesterday, several Democrats commended the nominee for his performance thus far, but none has indicated that he or she will vote to confirm him. The committee vote is scheduled for next Thursday, and many observers speculate that his nomination will be sent to the full Senate on a straight party-line vote.

“You are one of the best witnesses that, I think, has come before this committee,” said Sen. Joseph R. Biden Jr., a Delaware Democrat who has been one of the most combative questioners of Judge Roberts.

“If people can’t vote for you, then I doubt that they can vote for any Republican nominee,” said Sen. Orrin G. Hatch, Utah Republican.

One of the most closely watched Democrats is Sen. Dianne Feinstein, a California Democrat who voted in favor of Judge Roberts for his position on the U.S. Court of Appeals for the D.C. Circuit. She said she will vote against Judge Roberts for the Supreme Court, however, if she determines that he would overturn Roe v. Wade, the court decision that established federal abortion rights.

She told Judge Roberts that he’d spoken “eloquently” about Roe.

“I learned a lot from listening to you,” she said. “You discussed the right to privacy. You were very full and forward-speaking.”

Then Mrs. Feinstein inquired whether the White House also had applied an abortion litmus test when it selected Judge Roberts for nomination.

“Has anyone — when you were being interviewed for this position — ever asked your opinion on Roe?” she asked, to which he responded in the negative.

“OK. That’s good to know,” she added.

As on the previous day, Judge Roberts repeatedly declined — to the great irritation of several senators — to answer questions about particular cases or issues that might come before the Supreme Court.

“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,” said Mr. Biden, after failing to prod Judge Roberts into discussing “right to die” issues.

“Senator, that’s asking me for an opinion in the abstract on a question that’ll come before the court,” Judge Roberts told Mr. Biden. “And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedence presented.”

In a different exchange, Judge Roberts said his confirmation is not a “bargaining process.”

“Judges are not politicians,” he said. “They cannot promise to do certain things in exchange for votes.”

The matter of the eminent domain case, however, proved safer waters for Judge Roberts.

Sen. Sam Brownback, Kansas Republican, had asked Judge Roberts about the court decision in Kelo v. City of New London, in which the Supreme Court ruled 5-4 that the government could take private property from one owner and give it to another.

Previously, eminent domain was restricted to cases in which the property was acquired for public use. Under the new parameters, eminent domain could be invoked if it is merely thought that the new owner could generate more tax revenue.

The ruling triggered a national outcry from both liberals and conservatives. Judge Roberts said yesterday that he was “surprised” by the ruling.

“In, you know, the first year in law school we all read the decision in Calder against Bull, which has the famous statement that the government may not take the property of A and give it to B,” he said.


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