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Roberts fields senators' queries for second day

Chief justice nominee avoids specifics on hot-button issues

Judge John Roberts answers questions Tuesday before the Senate Judiciary Committee.



John Roberts
Supreme Court
Justice and Rights

WASHINGTON (CNN) -- Chief justice nominee John Roberts faced friendly questioning early Wednesday but was expected to endure more intense probing as Senate confirmation hearings continued for a third day.

It likely will be the last day the 50-year-old federal appeals court judge appears before the Senate Judiciary Committee -- and the last chance for Democrats to press him on a range of hot-button issues.

Despite a few testy exchanges Tuesday, Roberts was able to deflect tough questions about his conservative philosophy and past rulings.

Wednesday's initial questioning focused on a recent Supreme Court ruling in which a 5-4 majority allowed municipal governments to seize private property and turn it over to developers, under eminent domain, as a "public use" benefiting local economies.

Roberts declined to say whether the June ruling in a Connecticut case was 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."

Roe sidestepped

On Tuesday, Sen. Arlen Specter, Republican chairman of the Judiciary Committee, began by asking Roberts about his respect for the precedent of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion.

Roberts declined to say whether he thought Roe was a proper ruling. "I should stay away from discussion of specific cases," he politely told Specter.

But he acknowledged that upholding past cases ensured "predictability, stability and legitimacy."

Later in the hearing, Roberts told Sen. Dianne Feinstein, D-California, he would judge any challenge to Roe according to the principle of stare decisis, latin for "stand by a decision," meaning courts are bound by previous decisions, or precedent.

Once issues are "settled," the idea is to prevent ongoing confusion and litigation over the meaning and impact of past cases -- except in extraordinary cases.

Roberts cited Planned Parenthood v. Casey, the 1992 Supreme Court decision that affirmed Roe, as the starting point in his deliberations if a case challenging the landmark ruling came before him.

"Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis," Roberts said.

"That is a precedent entitled to respect under principles of stare decisis like any other precedent of the court."

Right to privacy

Earlier Tuesday, Roberts rejected views he expressed in a 1981 memo as a lawyer in the Reagan White House.

In the memo, he dismissed Roe v. Wade's holding that the right to abortion is grounded in what he termed "the so-called right to privacy." (Watch Roberts' response -- 0:41)

"So they weren't necessarily your views then and they certainly aren't your views now?" Specter asked.

"I think that's fair, yes," Roberts replied.

Roberts also told Specter that he believes the right to privacy exists in the Constitution.

"The right to privacy is protected under the Constitution in various ways," Roberts said, citing the First, Third and Fourth amendments as well as 80 years of precedent.

On other issues, Sen. Patrick Leahy, the ranking Democrat on the committee, pressed the nominee on presidential power in wartime.

When asked if the president could authorize torture of prisoners, in violation of international treaties, Roberts said, "No one is above the law."

But he declined to go further in analyzing the issue.

Equal protection of women

Feinstein also asked Roberts about his statement in a memo from the Reagan administration questioning whether it was a good idea that housewives should become lawyers, a comment some have viewed as hostile to equal rights.

Roberts responded the statement was meant as a "lawyers' joke" and that he fully supports equal rights for women. (Watch the exchange between Feinstein and Roberts -- 8:56)

"It is to me, obvious in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it," Roberts said.

"The notion that that was my view is totally inconsistent and rebutted by my life. I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother."

Executive power

Roberts also seemed to reject executive power to order the detention of American citizens in wartime simply because of their nationality or religion, similar to the imprisonment of Japanese-Americans during World War II.

"I would be surprised if there were arguments that could support it" even in wartime, he replied.

Roberts described himself as a "modest judge," who "appreciates the role of a judge is limited. It is not to legislate or execute the law."

He added courts "should not have a dominant role" in society, except to block overreaching executive or legislative policy.

When asked by Sen. Edward Kennedy, D-Massachusetts, if he supports Brown v. Board of Education, which outlawed segregation in public schools, Roberts replied, "Yes."

He called the 1964 Voting Rights Act "one of the most precious rights we have."

Grilling from Kennedy

Kennedy sharply probed the judge over memos he wrote in the 1980s on whether federal anti-discrimination protections should be extended to universities' athletic, housing, faculty hiring and other programs not directly funded by the U.S. government.

Kennedy said the position in the memos would have sharply curtailed the civil rights protections of minorities if adopted.

Roberts bristled slightly, telling the lawmaker, "You've not accurately represented my position."

"I was not formulating policy. I was articulating and defending the [Reagan] administration's position," Roberts told Kennedy.

Sen. Joseph Biden, D-Delaware, told Roberts that questioning him "is like pitching to Ken Griffey," the Cincinnati Reds star.

But Biden grew animated when he claimed Roberts was refusing to answer specifics, contrasting his responses with Justice Ruth Bader Ginsburg's testimony during her 1993 confirmation.

"He's filibustering," Biden said.

"That's a bad word, senator," Roberts replied, apparently in jest.

When Specter protested over the line of questioning, Biden told the nominee, "Well, go ahead and not answer the question."

Some of the nominee's strongest comments came in questioning on whether American judges should rely on foreign case law when making decisions.

The Supreme Court did just that last year when it outlawed the death penalty for juvenile killers. In the majority opinion, Justice Anthony Kennedy, a Reagan nominee and moderate conservative on the court, cited "the overwhelming weight of international opinion against the juvenile death penalty."

Roberts was unusually candid, saying reliance on international courts "is a misuse of precedent." He added it would be improper to rely on a German judge, unelected by the American people, since "he's playing a role in helping shape policy binding this nation. In foreign law, you can find anything you want" to support your own views, he said.

CNN's Bill Mears contributed to this report.

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