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Roberts Sees Privacy Right; But Supreme Court Pick Refuses to Take Abortion Stance

Posted on: Wednesday, 14 September 2005, 15:00 CDT

Washington Confronting what one senator called the "600-pound elephant in the room," Supreme Court nominee John G. Roberts Jr. said Tuesday that he believes there is a constitutional right to privacy, but he refused to say whether that right should be applied to abortion.

Offering faint but tantalizing hints about how he would rule on the hot-button issue, Roberts repeatedly declined to characterize his views on abortion rights at a lengthy confirmation hearing before the Senate Judiciary Committee, saying that would compromise his ability to judge cases with an open mind.

Roberts said the court's affirmation of abortion rights was "entitled to respect" as a legal precedent, and that "it is a jolt to the legal system when you overturn a precedent."

But he also said that "there are situations when that's a price that has to be paid."

Wasting no time, committee Chairman Arlen Specter (R-Pa.), an abortion-rights supporter, raised the matter at the outset of the hearing, calling it "the central issue which perhaps concerns most Americans."

Republican Sen. Sam Brownback of Kansas said of the abortion issue: "It's the 600-pound elephant in the room. It's what everyone is looking at."

Specter asked Roberts whether he agreed with the court in the 1992 Planned Parenthood vs. Casey case, when it recognized the weight of precedent in upholding the right to abortion established in the landmark Roe vs. Wade case of 1973.

Roberts said Roe vs. Wade not only set a precedent in the matter, but that the Casey case was a further precedent.

Roberts said that as a judge, he would have to begin any basic consideration of abortion rights with the Casey decision.

"Precedent plays an important role in promoting stability and evenhandedness," Roberts said. "It's not enough that you might think the precedent is flawed to justify revisiting it."

Roberts said one reason for respecting precedents is the "settled expectations" they give to people about the law.

But Roberts also took pains to say that he was not indicating how he might rule on abortion cases, saying that there were legitimate rationales for rejecting precedents.

Opinions unchanged

Although some senators said they weren't entirely sure what to make of Roberts's remarks, the nominee's comments on abortion were indirect enough to leave most partisans on both sides of the issue apparently unchanged in their views of the would-be chief justice.

Taking questions from morning until evening from 16 senators, Roberts repeatedly declined to discuss matters that he said are likely to come before the court, prompting some of the most pointed sparring of the day with Democrats.

At one point, Delaware's Joe Biden, chafing at Roberts' refusal to discuss abortion more directly, complained that the nominee was "filibustering" and told Roberts, "Go ahead and continue not to answer."

Specter chastised Biden repeatedly for interrupting Roberts.

Biden said he was interrupting because "his answers are misleading, with all due respect."

Specter responded, "They may be misleading, but they are his answers."

Roberts, who maintained his composure over the course of the grilling on Tuesday, told Biden: "With respect, they are my answers. And, with respect, they're not misleading, they're accurate."

Although Democrats questioned why Roberts was willing to discuss some past cases and not others, Roberts said, "I have gone farther than many other nominees in talking about cases."

He said that "nominees have to draw the line where they're comfortable" in revealing their views.

More broadly, Roberts said he would be a judge who placed the law above his politics and personal views, and 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."

The hearing covered an array of issues from civil liberties in wartime to discrimination to presidential power.

Throughout, Roberts was the recipient of praise and support from most Republicans on the panel, who lauded his comments about the limited role of the courts and vigorously defended his prerogative not to answer questions that he felt uncomfortable answering.

From Democrats, he faced skepticism on several levels.

Some complained that he was choosing the issues on which he was willing to express opinions, even if they were not matters of settled law.

Some expressed doubt about his remarks in his opening statement Monday that as judge, he would be a neutral "umpire" who would approach issues without regard to his own political leanings or personal views.

And some were dubious when Roberts described his legal work under President Reagan in the 1980s as representing the output of a young staff attorney hewing to administration policy, and as reflecting little, if anything, about his own views.

His 1980s memos, representing conservative and sometimes sharply stated views on subjects ranging from voting rights to privacy, have drawn fire from Democrats and liberal groups.

Questions from Kohl

Wisconsin Democrat Herb Kohl asked Roberts whether there were any views he held or positions he took in those memos that he would disavow today.

"I think that would show a change as we grow and develop and experience life," Kohl said.

Roberts said the memos don't represent "how I would look at the issue if I were a judge." But he declined to say specifically how his views might have changed in 20-plus years.

"I was promoting the views of the people for whom I worked. And in some instances, those are consistent with personal views. In other instances, they may not be," Roberts said.

Roberts did say that he would adopt a different tone in writing about the same issues today.

"I hope, as you suggest, I've grown as a person over that period as well. And that also gives you some perspective. And that type of a perspective might cause somebody to moderate their tone with respect to some issues and in some areas, and I'm sure that's the case," he said.

Kohl also asked Roberts whether he thought the court had any role in righting what he said were the "wrongs" revealed by Hurricane Katrina, saying the disaster had underscored issues of social and economic inequality in America.

Roberts replied that "to the extent you are talking about the injustices in society and the discrimination in society, the best thing the courts can do is enforce the rule of law and provide a level playing field for people to come in and vindicate their rights and enforce the rule of law."

Civil liberties, war

The other Wisconsin Democrat on the panel, Russ Feingold, questioned Roberts on voting rights, civil liberties and other issues.

Feingold, the only senator to oppose the USA Patriot Act, asked Roberts about the impact of war on civil liberties.

"The Bill of Rights doesn't change in times of war," Roberts told him.

Roberts also concurred with Feingold's denunciation of a court decision during World War II that involved the internment of Japanese-Americans.

Feingold questioned Roberts pointedly about views he had expressed about the Voting Rights Act when he worked in the Reagan administration, and whether he had reconsidered his views. Feingold expressed skepticism when Roberts replied that he hadn't studied the matter and wasn't in a position to re-evaluate it Tuesday.

Roberts refused to answer questions from Feingold about why he didn't recuse himself from a federal appeals case on military tribunals involving the Bush administration when Roberts was being interviewed for a Supreme Court opening.

Roberts said judicial ethics prohibited him from discussing it because the matter is pending. Feingold said he was a "little disappointed" in that answer.

Copyright 2005, Journal Sentinel Inc. All rights reserved. (Note: This notice does not apply to those news items already copyrighted and received through wire services or other media.)

Source: Milwaukee Journal Sentinel

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