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Sen. Specter asks Roberts about judicial activism

August 8, 2005

By Susan Cornwell

WASHINGTON (Reuters) – U.S. Supreme Court nominee John
Roberts was warned on Monday that he will face questions at his
confirmation hearings about whether he agreed with “judicial
activism” on the court that sought to scale back Congress’
authority.

Senate Judiciary Committee Chairman Arlen Specter, who will
be running the hearings, wrote to the nominee to say he would
be asking about two landmark Supreme Court decisions in the
last decade that limited Congress’ powers under the interstate
commerce clause of the U.S. Constitution.

“What is your thinking on the jurisprudence of U.S. v.
Lopez and U.S. v. Morrison, which overturned almost 60 years of
Congress’ power under the Commerce Clause?” Specter, a
Pennsylvania Republican, asked.

He said he wanted to give Roberts some “advance notice” of
questions he would raise at hearings starting on Sept. 6.

“I do see a great deal of popular and Congressional
dissatisfaction with the judicial activism; and, at a minimum,
the Senate’s determination to confirm new justices who will
respect Congress’ constitutional role,” Specter wrote.

President Bush nominated Roberts, a federal appeals judge,
to replace retiring Justice Sandra Day O’Connor, a mainstream
conservative who often cast the decisive vote on the closely
divided court.

O’Connor ruled with the majority of the court in both the
Lopez and Morrison decisions, which were decided 5-4 and
limited Congress’ ability to use the commerce clause to
intervene in non-commercial interstate matters.

In the 1995 U.S. v. Lopez case, the court struck down a law
banning firearms near schools, while in the 2000 U.S. v.
Morrison case, the court invalidated part of the federal
Violence against Women Act.

Specter’s letter to Roberts made no mention of Roe v. Wade,
the 1973 Supreme Court decision that legalized abortion and is
expected to be a subject at the confirmation hearings.

Instead Specter complained of the “abrupt reversals” of the
Lopez and Morrison cases and added that members of Congress
were irate about the Court’s “denigrating and really,
disrespectful statements about Congress’ competence.”

Specter is not the first senator to mention the commerce
clause issue since Roberts’ nomination. Sen. Charles Schumer of
New York, a judiciary committee Democrat, pressed Roberts about
it in a recent meeting and said afterwards he was convinced
Roberts would not “shrink the commerce clause.”

The Senate’s leading Democrat meanwhile asked the Bush
administration to reconsider its refusal to release internal
documents written by Roberts while at the Justice Department.

Senate Minority Leader Harry Reid, a Nevada Democrat, said
senators needed to see the documents from the years Roberts
served as deputy solicitor general in order to examine
50-year-old conservative’s candidacy effectively.

“I urge the White House to reconsider this initial
decision, and to work cooperatively with Judiciary Committee
Democrats so that the Senate can do its job more effectively,”
Reid said in a statement.




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