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On day of questions, Roberts answers few

He says that he supports a right to privacy and that the president should follow laws on torture. But Democrats complain there's plenty he doesn't say.

By BILL ADAIR
Published September 14, 2005

WASHINGTON - Senators tried many approaches with Supreme Court nominee John G. Roberts Jr. They asked direct questions, offered hypotheticals and quizzed him about memos he wrote 20 years ago.

But after eight hours in the witness chair before the Senate Judiciary Committee, Roberts managed to say little about abortion and many other controversial issues. In fact, the juiciest revelations were that he believes in a constitutional right to privacy and supports the basic judicial concept of adhering to precedent.

"It is a jolt to the legal system to overrule a precedent," Roberts said, "and that has to be taken into account."

But whether that means he would uphold Roe vs. Wade, the landmark abortion rights case, is anybody's guess. He wouldn't discuss abortion or many other topics because he said they might come before the court.

Roberts, who has been nominated to replace Chief Justice William Rehnquist, even sidestepped a question about whether the court should televise its public sessions.

"It's not something I have a settled view on," he said.

His string of nonanswers frustrated Democratic senators who tried to pin him down on the issues. An exasperated Sen. Joe Biden groused at one point that Roberts was "filibustering."

But Republicans said Roberts had the right to leave questions unanswered. Sen. Arlen Specter, the chairman of the committee, had appeared frustrated by Roberts' lack of responses to questions on abortion, but at the lunch break he said he understood why the nominee did not answer.

"He cannot be required to answer how he's going to decide a case that might come before the court," Specter told reporters. "That would undercut the very basics of judicial independence."

During the all-day hearing, many words were spoken, but little was said.

The most spirited exchange was between Roberts and Biden, D-Del., a possible presidential candidate. Biden repeatedly interrupted the nominee during a discussion of whether Justice Ruth Bader Ginsburg had answered questions during her 1993 hearings.

"Oh, judge, judge, judge ..." Biden said.

Roberts started to answer, but Biden interrupted and was rebuked by the chairman, Specter.

"Wait a minute, Sen. Biden. He's not finished his answer," Specter said.

"He's filibustering, senator. But okay, go ahead," Biden said.

"No, he's not. No, he's not," said Specter.

Roberts joked that filibuster is "a bad word," apparently referring to the Democrats' filibusters to stall Republican judicial nominations.

"That's if we do it to you, " Biden said, adding tartly, "Go ahead and continue not to answer."

Still, Roberts offered views on a few issues. Among them:

--He said the president should follow laws about torturing enemy prisoners. "I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution and statutes."

--Roberts said his religious views would not affect his rulings on church-state issues.

--Asked how he would describe his judicial philosophy, he rejected terms such as "originalist" and said, "I prefer to be known as a modest judge."

--Roberts said he was just making a lawyer joke in a 1985 memo in which he wrote that "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

He told the committee that his point was "Is it good to have more lawyers?" He said his wife was a lawyer and assured the committee, "I have always supported and support today equal rights for women - particularly in the workplace."

Roberts said he had changed his mind about a memo he wrote 22 years ago in which he supported term limits for judges.

"I'm not sure today, from where I sit, that that is a good or healthy thing for the judiciary," said Roberts, who would receive a lifetime appointment if confirmed.

Several senators asked Roberts about memos he wrote during the 1980s when he was an attorney in the Reagan administration. In one, Roberts referred to the "so-called right to privacy" that was the basis for the Roe decision. In another memo, Roberts urged the attorney general not to intervene in a case alleging discrimination against female prisoners.

For those memos and several others, Roberts said the words did not necessarily reflect his opinions.

He said he was summarizing a professor's beliefs with the privacy remark and, for the female prisoner case, urging the attorney general to be consistent with his previous statements.

Roberts was originally nominated to replace retiring Justice Sandra Day O'Connor. But President Bush chose instead to have him replace Rehnquist, who died Sept. 3.

The hearing continues today with more questioning of Roberts. On Thursday, the committee is scheduled to hear from opponents and supporters of the nominee.

Democrats complained Tuesday that Roberts was not responsive.

"I think you've answered some questions, but not a whole lot of others," said Sen. Chuck Schumer, D-N.Y.

He said Roberts had selectively applied the ethical shield, answering some questions but dodging the controversial ones.

Sen. Edward Kennedy, D-Mass., a veteran of many confirmation hearings, said Roberts appeared to be confident he would be approved.

"Candidates, when they begin to feel they've got the votes, they begin to get more vague."

--Washington bureau chief Bill Adair can be reached at 202 463-0575 or adair@sptimes.com

[Last modified September 14, 2005, 06:50:18]