Roberts Is Confronted on Abortion

Times Staff Writers

Chief Justice nominee John G. Roberts Jr., addressing one of the nation’s most contentious issues, indicated Tuesday that it would be hard for the Supreme Court to overturn the Roe vs. Wade decision legalizing abortion, but he refused to say whether he would support efforts to do so.

Roe and the legal arguments behind it -- especially privacy rights and the rule of precedent -- came to the fore repeatedly during more than 10 hours of questioning by the Senate Judiciary Committee on its first day of grilling Roberts, whom President Bush nominated to lead the nation’s highest court.

The hearing provided Democrats their first chance to publicly confront Roberts, a lawyer who is an appellate court judge, after weeks of poring through tens of thousands of pages of memos, opinions and other documents he had written. And they used the opportunity to probe the nominee’s views on issues central to their party’s legacy over the last half-century -- abortion rights, civil rights and environmental regulation, among others.

It was also Roberts’ first time in the full glare of public scrutiny, under TV lights and fielding a barrage of questions -- on abortion and other controversies -- that ranged from gentle to edgy to outright combative, often in quick succession.


To them all, the 50-year-old former appellate lawyer kept his voice measured, his face placid and his manner deferential. A more deeply furrowed brow was his only sign of discomfort.

Roberts repeatedly reaffirmed his commitment to follow legal precedents, and said more than once that he considered Roe vs. Wade, the controversial 1973 decision legalizing abortion nationwide, to be “settled” under the law.

But he also discussed factors that can lead the court to overturn precedents, and was careful not to say whether any of those arguments might one day be applied to Roe.

“I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said under questioning by the committee chairman, Sen. Arlen Specter (R-Pa.), a moderate Republican who favors abortion rights.


But Roberts added: “There are situations when that’s a price that has to be paid.”

Roberts was equally guarded on other issues, especially those of great importance to Democrats, while making an effort to appear responsive.

And he managed to inject a note or two of humor. Asked by Sen. Herb Kohl (D-Wis.) whether he would support the nomination of an equally qualified woman to his same position -- a question hinting at the rationale for affirmative action -- Roberts demurred.

“I don’t think it’s appropriate for me to comment in any way about the president’s future selections, other than to say that I am happy with his past ones,” Roberts said to laughter from the audience of senators, aides, reporters and the public.

Senate Democrats have expressed reservations about Roberts, but have indicated they would not block his confirmation, which would require a filibuster in the Republican-controlled Senate. Still, the committee’s questioning is likely to be crucial to how many Democrats ultimately vote for a nominee who is politically conservative but who pledged repeatedly to keep an open mind in deciding cases.

“The ideal in the American justice system is epitomized by the fact that judges ... wear the black robes,” Roberts said. “That is meant to symbolize the fact that they are not individuals promoting their own particular views, but they are supposed to be doing their best to interpret the law, to interpret the Constitution, according to the rule of law, not their own preferences, not their own personal beliefs.”

Roberts will spend today answering more questions from senators. On Thursday, friends and experts are scheduled to testify about Roberts’ character and qualifications.

The Judiciary Committee is expected to vote by the end of next week on Roberts’ nomination, and the full Senate is scheduled to vote by the end of the month. With his expected confirmation, he would take over leadership of the court when its session begins Oct. 3.


Each committee member was allotted 30 minutes to question the nominee. Sen. Edward M. Kennedy (D-Mass.) used his time to ask Roberts about his writings on civil rights.

“I am deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings,” Kennedy said. “In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society.”

Kennedy grew exasperated when Roberts defended the views of the Reagan administration on the Voting Rights Act, of which Kennedy was a central supporter. Specter intervened, asking Kennedy to “let him finish his answer.”

The memo “represented my effort to articulate the views of the administration and the position of the administration for whom I worked ... 23 years ago,” Roberts said. It was a line of defense he used repeatedly when questioned about his writings from that era.

Sen. Dianne Feinstein (D-Calif.) asked Roberts to explain several instances in which he appeared to write disparagingly of women or women’s rights, including one instance in which he asked -- apparently tongue-in-cheek -- “whether encouraging homemakers to become lawyers contributes to the common good.”

Roberts replied that the joke was intended to disparage lawyers, not homemakers.

He said the suggestion that he believed women should remain homemakers “is totally inconsistent and rebutted by my life.”

“I married a lawyer,” he said. “I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn she has equal citizenship rights with her brother.”


During one testy exchange, Specter asked Sen. Joseph R. Biden Jr. (D-Del.) to let Roberts finish, prompting Biden to retort, “His answers are misleading, with all due respect.”

“Wait a minute. They may be misleading, but they are his answers,” Specter responded. “You may finish, Judge Roberts.”

As the day wore on, Democrats at times seemed disarmed by the nominee’s genial and sometimes self-effacing testimony.

“I have to say I have been pleasantly surprised by some of your answers today,” said Sen Charles E. Schumer (D.-N.Y.). He cited Roberts’ statement that he agreed there was a right to privacy under the law.

But Democrats also expressed frustration at what they viewed as his lack of responsiveness. Aides to committee Democrats said they counted 21 occasions in which Roberts declined to answer questions, including his views of cases that had already been decided.

“I think you have answered some questions, but not answered a whole lot of others,” Schumer said later. “I hope you will be thinking about that overnight.”

Roberts defended his reticence, saying he had decided to draw a distinction between discussing legal precedents long established in the law, and those which remained the subject of debate. He said he felt free to talk about the former, but ethically constrained from discussing the latter.

Outside the hearing room, conservatives lauded Roberts’ performance and liberals criticized it.

“I think he could well vote to overturn Roe v. Wade,” said Nan Aron, president of the Alliance for Justice, a liberal advocacy group on judicial issues.

She expressed disappointment with Specter’s questions for Roberts on abortion rights. “He brought it up the way he did to diffuse the issue.... We expect more of Sen. Specter.”

Ed Gillespie, former chairman of the Republican National Committee who has advised Roberts through the confirmation process, said he believed the nominee “was very gracious in listening to a recitation of memos that go back a long way. I think the record will report that Judge Roberts has been entirely accurate in his statements.”

As he adjourned the hearing shortly before 8 p.m, Specter declared the first day “dignified generally, contentious at times, but productive.”