Confirmed Conservative: Despite Concern over Bush Nominee's Record on Civil Liberties, Senate Approves John G. Roberts as Chief Justice

By Leaming, Jeremy | Church & State, October 2005 | Go to article overview

Confirmed Conservative: Despite Concern over Bush Nominee's Record on Civil Liberties, Senate Approves John G. Roberts as Chief Justice


Leaming, Jeremy, Church & State


On the second day of Senate Judiciary Committee hearings on the nomination of John G. Roberts Jr. as the nation's 17th chief justice, Sen. Dianne Feinstein (D-Calif.) sought to figure out Roberts' understanding of church-state relations.

Feinstein noted that John F. Kennedy, during his 1960 run for president, was asked whether his Catholicism would interfere with his ability to serve all Americans.

"At the time," Feinstein said, "[Kennedy] pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion. And he even said, 'I believe in an America where the separation of church and state is absolute.' My question is: Do you?"

Roberts responded with a dodge, but he was cut off by Feinstein.

"You can't answer my question yes or no?" she asked.

"Well, I don't know what you mean by absolute separation of church and state," Roberts replied. He then launched into a discussion of the Supreme Court's two recent decisions on Ten Commandments displays at government buildings.

The following morning's headline in The New York Times declared, "Nominee Is Profile in Caution."

Roberts' caution, however, by day three of his confirmation hearings proved tiring for several of the Judiciary Committee's members.

Sen. Joseph Biden (D-Del.), during his Sept. 14 questioning of Roberts, concluded, "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."

Despite the consternation caused by Roberts' smooth, but often elusive, performance, the Senate Judiciary Committee less than a week later sent the nomination to the entire Senate, where on Sept. 26 a majority of senators took their chances and elevated Roberts to the post of chief justice of the United States.

Before the 78-22 floor vote, a number of senators echoed the concerns about Roberts' record raised in the committee hearings and by an array of civil rights and liberties groups opposed to the nomination.

The confirmation process for Roberts, who had served on the U.S. Court of Appeals for the District of Columbia for less than two years, commenced with a wrangle over government secrecy. Senate Democrats urged the Bush administration to release the documents the nominee produced during his tenure in the first Bush administration.

Sen. Charles E. Schumer (D-N.Y.) knocked the White House for its stubborn refusal to comply.

"We have seen maybe 10 percent of you," Schumer told Roberts, "just the visible tip of the iceberg. And we all know that it is the ice beneath the surface that can sink the ship."

After the first day of hearings, which entailed opening statements by the 18 members of committee and a seven-minute statement by Roberts, the judge spent two marathon days Sept. 13 and 14 weaving his way around a barrage of questions regarding the kind of justice he might prove to be.

While his cagey performance exasperated Democrats and public interest groups who opposed the nominee, Religious Right lobbyists heaped praise on Roberts.

Jay Sekulow, chief attorney for TV preacher Pat Robertson's Americans Center for Law and Justice issued a Sept. 13 appeal to his supporters criticizing Americans United for Separation of Church and State and other groups who opposed Roberts.

"We are distributing legal memorandums to the staff of Senate Judiciary Committee members--and will continue to work closely with them to ensure that John Roberts is swiftly confirmed as Chief Justice of the United States Supreme Court," Sekulow said.

Sekulow, who was picked by the administration to solidify Religious Right backing for Roberts, was initially on the Republican committee members' list of witnesses in favor of the nominee. At the last minute, however, Sekulow was replaced by Rabbi Dale Polakoff, president of the Rabbinical Council of America, a group that promotes the ideas of politically conservative Orthodox rabbis. …

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