By MARGARET TALEV
September 13, 2005
Abortion dominated Supreme Court nominee John Roberts' first day of questioning by senators. Roberts, who has been supported by social conservatives, is expected to win confirmation by the Republican-controlled Senate. The margin will be determined how many Democrats support him; many have said the hearings would be a deciding factor in how they cast their votes.
But on abortion and other subjects, Roberts so far has avoided answering many specifics.
"I feel the need to stay away from the discussion of particular cases," Roberts told the pro-choice Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, only minutes into the questioning, when asked if developments over the past three decades had eroded the Roe decision.
Roberts demurred on several other occasions throughout the day, on questions involving abortion and other issues, telling senators that nominees have historically declined to answer questions involving matters likely to come before the court again.
A 50-year-old Roman Catholic, Roberts said his faith would not affect his interpretation of laws, including those involving abortion, end-of-life cases or separation of church and state.
"My faith and my religious beliefs do not play a role in judging," he told Sen. Dianne Feinstein, D-Calif. "When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source."
In confirmation hearings that began sharply at 9:30 a.m. and stretched into the night, the nominee also suggested Congress doesn't necessarily have the power to stop the nation's involvement in a war if a president wants to remain engaged.
"That's a question I don't think can be answered in the abstract," he told Sen. Patrick Leahy of Vermont, the ranking Democrat on the panel.
The Harvard-trained lawyer, who once clerked for the late Chief Justice William Rehnquist, whom he would replace, and who argued 39 cases before the high court before President Bush named him to a federal appeals court two years ago, also called it "a misuse of precedent" for the Supreme Court to look to other nations' laws to craft decisions.
In saying so, Roberts indirectly criticized one of his would-be colleagues, Justice Anthony Kennedy, who earlier this year cited international law in writing a majority opinion that prohibited the use of the death penalty against minors.
Predictably, many of the Republicans on the committee heaped praise upon Roberts in their 30-minute questioning sessions - sometimes beyond his comfort level.
"I think you're a conservative but I think you're one of the great minds of our generation, of our time," said Sen. Lindsey Graham, R-S.C. "And I'm dying to find out if you get any votes on the other side."
Meanwhile, verbal attacks came from Democrats.
Specter scolded both Sen. Ted Kennedy of Massachusetts and Sen. Joe Biden of Delaware for repeatedly interrupting the nominee as he tried to respond to their questions on minority and women's rights.
"Go ahead and continue not to answer," Biden chided at one point, calling Roberts' responses "misleading."
Roberts, who was all smiles during Monday's opening statements, was firm with his adversaries on Tuesday. He told Specter, "With respect, they (his answers) are not misleading."
As the hearing wore on, Roberts seemed to lose some of his poise, as Sen. Russ Feingold, D-Wis., pressed him on presidential powers and on the Voting Rights Act.
Roberts defended himself against criticism from Democrats over memos he wrote while a lawyer for the Reagan administration, some of which argued for narrow interpretation of various civil rights protections.
"I was not formulating policy," Roberts said. "I was articulating and defending the administration's position."
Roberts also told senators about the tenor of some of his memos.
"I've grown as a person" in the intervening years, he said. "That type of a perspective might cause somebody to moderate their tone with respect to some issues in some areas, and I'm sure that's the case. I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers."
During Specter's questioning earlier in the day, Roberts spoke of his respect for "stare decisis," the legal concept that courts are bound by previous rulings and the rulings of higher courts. He also said Roe v Wade, whose core has withstood various tests including Planned Parenthood v Casey in 1992, was "settled as a precedent of the court, entitled to respect under principles of stare decisis."
"I do think that it is a jolt to the legal system when you override a precedent," he said. "Precedent plays an important role in promoting stability."
At the same time, Roberts said, "there are situations when that's a price that has to be paid." Among examples he cited was Brown v Board of Education, which, in banning racial segregation in public schools, overturned a precedent.
While Roberts said privacy was a constitutional right, he did not say whether he thinks abortion is a matter of privacy. He did, however, say he supported a 1965 case that said married couples' decision to use contraceptives is a private matter. And he said a judge should consider a society's "settled expectations" among other factors when considered whether to overturn a precedent.
But later, under questioning by Sen. John Cornyn, R-Texas, Roberts made clear he was not saying either the Roe or Casey rulings should necessarily be upheld.
"You weren't making any commitment one way or another about the outcome of any challenge?" Cornyn asked.
"No senator," Roberts said. "And I've tried as scrupulously as possible today to avoid making any commitments about cases that might come before the court."
A second round of questions, in 20-minute segments, continues Wednesday, and the panel was scheduled to wrap up its hearings Thursday.
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