Monday, September 19, 2005


Senate should
confirm Roberts


Senators are scheduled this week to consider the nomination of John Roberts Jr. to be chief justice of the United States.

TESTIMONY by John Roberts Jr. before the Senate Judiciary Committee reflected his brilliant legal knowledge, his geniality and his sense of humor, but senators from the left and right are stumped about the philosophy he will follow as chief justice of the United States. Those personal ingredients and his self-portrayal as a pragmatic enforcer of the Constitution justify his Senate confirmation.

President Bush promised in last year's re-election campaign to nominate conservatives to the court, and Roberts fits that mold. However, some conservatives would have been happier if he had elevated Justice Antonin Scalia to the post, and Roberts distanced himself from Scalia and Justice Clarence Thomas, the court's most conservative members.

Roberts made clear that he does not adhere to those two justices' doctrine of "originalism," the translating of the founding fathers' words as they were intended and understood to mean at the time they were written. Instead, he said words such as "liberty," "due process" and "unreasonable" were used "to apply in a meaningful way down the ages."

That generality and pragmatism may bring Roberts closer to the approach of Justice Sandra Day O'Connor, the court's moderate swing member whose pending vacancy Roberts was initially intended to fill.

Roberts said he believes the Constitution protects the right to privacy, even though the words cannot be found in the document, and he endorsed a 1965 decision that extended that right to married couples' use of contraceptives. He properly declined to give his view of the decision in Roe v. Wade, which was based on the right to privacy and is likely to be revisited; he said it was "settled as a precedent of the court" and was "entitled to respect." Oregon's law allowing physician-assisted suicide, which is based on the right to privacy, also is on the court's docket.

Democrats on the committee complained that Roberts was not as forthcoming as Justice Ruth Bader Ginsburg on abortion or 1987 nominee Robert H. Bork on various issues, but they had written extensively on those matters. Roberts' positions on issues have reflected those of his clients, including President Ronald Reagan.

He represented the state of Hawaii in Rice v. Cayetano, in which the Supreme Court struck down the restriction of voting for Office of Hawaiian trustees to native Hawaiians as racially discriminatory. The issue of Hawaiian sovereignty embedded in the Akaka Bill did not arise in the Senate hearings.


Growth of charter schools
indicates need for more


Enrollment at charter schools has increased while dropping slightly at regular campuses.

INCREASING enrollment at Hawaii's 27 charter schools at the same time that regular school populations are dipping may have more to do with demographics than dissatisfaction with public education.

However, given the growth, state lawmakers should consider lifting the cap on the number of charter schools and boosting funds for them because they offer students an option that can help them succeed.

Charter schools, which are part of the public education system but allowed more flexibility in governance, saw enrollment increase 8.3 percent this school year compared to a slight decrease at regular campuses.

Not all charters drew more students with 52 percent of the jump going to six established conversion schools, those that had once been regular schools. More than half of the 27 schools, mainly new start-ups, have 150 students or less.

How much more the larger schools can grow without jeopardizing their personalized learning environments is problematic.

One proposition may be to convert regular schools that have been placed in restructuring due to weak student test scores under the federal No Child Left Behind law, though the shifts would be complicated.

On average, students at charters have performed better in testing than their regular school counterparts, but like enrollment, scores range greatly from school to school.

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