Democrats question Roberts' role in case

WASHINGTON — Continuing the preliminary sparring over the nomination of John Roberts to the Supreme Court, Democrats posed questions on a potential conflict of interest in a decision in a recent case involving the Bush administration while liberal groups, including Naral Pro-Choice America, prepared new campaigns against him.

Sens. Russell D. Feingold of Wisconsin and Charles E. Schumer of New York, both Democrats, sent a letter to Roberts asking him to explain why he participated in deciding the case after he was interviewed for the court seat.

The case, Hamdan vs. Rumsfeld, concerned the Bush administration's use of military commissions to try suspected terrorists held at Guantanamo Bay, Cuba. On July 15 — shortly before Bush announced his nomination — Roberts was part of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that ruled in favor of the administration, unanimously overturning a lower court's decision that the tribunals violated the Constitution and international law.

Roberts was placed on the panel last December. He was first interviewed by Attorney General Alberto R. Gonzales for the nomination in April, days before the panel began hearing the case and months before the Supreme Court vacancy.

In response to the Democrats' letter, Sen. Arlen Specter, the Pennsylvania Republican who is chairman of the judiciary committee, released letters from two law professors arguing that Roberts was right to participate in the decision.

In one, Professor Thomas D. Morgan of George Washington University Law School argued that, except for the chief justice, every federal judge is a potential candidate for a higher position and that judges are routinely interviewed about potential openings. In the other, Professor Ronald D. Rotunda of George Mason School of Law argued that requiring judges to recuse themselves in similar circumstances could allow the government to choose who hears its cases by scheduling interviews that would effectively eliminate any judge it does not want.

The Democratic senators, however, noted that other legal ethicists have said that Roberts should have recused himself, in part because of the Hamdan case's importance to the administration. The two senators asked him to explain, before confirmation hearings begin on Sept. 6, why he continued to participate in the case and what research he conducted into the ethical issues.