Senators Wary of Court Reach ; at Hearings, They Challenge Roberts on Balance of Powers

Article excerpt

Most questions senators are asking the first US Supreme Court nominee in 11 years follow predictable partisan scripts. But a new theme is surfacing in the confirmation hearings for John Roberts, and it's coming from those in both parties: a concern that courts are usurping the role of legislators, especially the US Congress.

For Senate Judiciary Committee chairman Arlen Specter, it's personal. He didn't appreciate the Rehnquist court's decision to overturn a provision of the 1994 Violence Against Women Act, a law he helped to draft.

"The next chief justice will have the potential to change the court's image, in the eyes of many, as a superlegislature and to bring consensus to the court, which has made a hallmark of 5-4 decisions, many of which are inexplicable," he said Monday as the hearings opened.

Judge Roberts is the first high-court nominee to face senators since the Rehnquist court decided a series of federalism cases, beginning in 1995, that have reined in more than three dozen federal statutes. Senators want to know if Roberts, who once clerked for the former chief justice, will follow Rehnquist's lead.

More than just a venue for deciding who gets to sit on the court, hearings are also a chance for a dialogue between institutions that rarely talk, though they sit across a park from each other.

"It's a very pointed message in a very public forum to someone about to assume the most important seat on the court," says Ross Baker, a political scientist at Rutgers University in New Brunswick, N.J. "Whether he heeds it or not, Roberts can't be indifferent that the Senate is upset about the Supreme Court usurping the functions of Congress, second guessing them, and belittling their reasoning."

Sen. Mike DeWine (R) of Ohio told Roberts Monday that the Supreme Court is "unmaking" the US Constitution. "Many fear that our court is making policy, when it repeatedly strikes down laws passed by Congress and the state legislature," he said, citing laws protecting the aged, the disabled, and women who are the victims of violence.

GOP Sen. John Cornyn of Texas blasted the "ideal of the Supreme Court as a sort of superlegislature." Sen. Sam Brownback (R) of Kansas, a leading conservative and potential presidential candidate in 2008, told Roberts that "constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today."

Democrats struck similar themes.

Sen. Dianne Feinstein (D) of California, one of five Democrats who voted for Roberts for confirmation to the Fourth Circuit Court of Appeals in 2003, challenged the Rehnquist court's restrictive interpretation of the Constitution, which would limit the role of Congress. "If you, Judge Roberts, subscribe to the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be to severely restrict the ability of Congress to tackle nationwide issues that the American people have elected us to address. …

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