Roberts refuses to say how he'd rule

WASHINGTON — John Roberts testified yesterday that he believes the Constitution protects the right to privacy, the legal underpinning of the nation's landmark abortion law, but he refused to say whether he would vote to uphold Roe v. Wade if he is confirmed as chief justice of the United States.

In a day of sometimes-testy exchanges with senators, Roberts distanced himself repeatedly from his conservative writings as a young legal adviser to President Reagan, including a memo in which he had disparaged privacy as "amorphous" and a "so-called right" not spelled out in the Constitution.

Democrats pressed him aggressively, seeking to elicit his views on abortion and a range of other volatile issues by reminding him of stances he had advocated in the past. But time and again throughout the first full day of questioning at his Senate confirmation hearing, Roberts refused to divulge the way he would rule on matters of voting rights, gender equity, fair housing and the role of religion in public life.

He deflected some questions by asserting it would be improper to foreshadow his views on cases that might come before the Supreme Court. At other times, he shielded his personal views by saying his early writings simply mirrored the policies of two Republican presidents for whom he worked.

"Senator, I was a staff lawyer; I didn't have a position," Roberts said in a typical exchange, when asked about a memo from the early 1980s advocating a policy that would have allowed colleges to receive federal money even if some of their programs discriminated against women.

The eight-hour hearing before the Senate Judiciary Committee gave senators their first chance to publicly grill Roberts, 50, nominated by President Bush to succeed the late Chief Justice William Rehnquist. Republicans, who control the committee and the full Senate, praised Roberts and defended his refusal to answer questions because the issues they involve could someday come before the high court.

But Democrats suggested that Roberts would shift the court more sharply rightward than his careful testimony suggests. They repeatedly read to him his own words from government memos he had written in the 1980s — excerpts from tens of thousands of documents released in recent weeks from his time as a federal lawyer — and demanded to know whether they reflected his personal views, then and now.

"His answers are misleading," an exasperated Sen. Joe Biden, D-Del., told committee Chairman Arlen Specter, R-Pa.

"They may be misleading," Specter shot back, "but they are his answers." When the laughter in the marble hearing room died down, Roberts said: "With respect, they are my answers. And, with respect, they're not misleading, they're accurate."

Sen. Lindsey Graham, R-S.C., sought to persuade a reluctant Roberts to say that he would be the ideological heir to Rehnquist, for whom the nominee once worked as a law clerk. Finally, Roberts agreed that his nomination would not lead to "a dramatic departure" from the Rehnquist court.

Specter, who supports abortion rights, and several Democrats challenged Roberts especially hard on his views of Roe, the 1973 decision establishing that women have a constitutional right to privacy that includes the right to an abortion. Because Roe has stood for 32 years, much of the discussion centered on when and why a settled ruling should be overturned.

Roberts told Specter that he respected the doctrine of "stare decisis" — Latin for letting decided issues stand — adding, "I do think it is a jolt to the legal system when you overrule a precedent." But some longstanding cases deserve to be overturned, he said, such as those that legalized slavery in the 19th century and racial segregation in the 20th century.

Roberts set forth criteria that he said judges and justices should use to determine whether to "revisit" a precedent, saying they include "settled expectations," the court's legitimacy and whether a precedent is workable or has been "eroded by subsequent developments."

"It is not enough that you may think the prior decision was wrongly decided," said Roberts, who during the 1980s signed a memo saying that Roe was "wrongly decided" and should be overturned.

Later, Biden asked whether "there is a right of privacy to be found in the liberty clause of the 14th Amendment." Roberts replied, "I do, senator."

Sen. Dianne Feinstein, D-Calif., the only woman on the panel, cited portions of a half-dozen 1980s-era memos by Roberts that she said reflected a lack of support for women's rights. In one of the memos, regarding the nomination for a prize by the Clairol company of a female government lawyer who had been a homemaker before entering law school, he wrote: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that's for the judges to decide."

"I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way," Feinstein said. Roberts replied that he has consistently supported "equal rights for women, particularly in the workplace" and said that he had merely been joking with his boss, former White House counsel Fred F. Fielding, "that there are too many lawyers today. ... It has nothing to do with homemakers."

Feinstein also questioned Roberts, a Roman Catholic who has argued in past writings for an expanded role of religion in public life, about his views on the separation of church and state. "I don't know what that means when you say absolute separation," Roberts replied. "I do know this: that my faith and my religious beliefs do not play a role in judging. 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."

The committee's senior Democrat, Sen. Edward Kennedy, D-Mass., challenged Roberts about civil rights, including his memos on voting rights, which reflected Reagan's opposition to broadened federal protections that ultimately were approved by Congress. Roberts responded that the current Voting Rights Act has been found constitutional, saying, "I don't have any issue with that." But he declined to comment on any extension of the law, saying that questions about that could come before the court.