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A cool nominee sidesteps hot issues

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WASHINGTON - Under intense pressure at his nationally televised Senate hearing yesterday, Judge John G. Roberts Jr. never lost his cool and never gave an inch.

He was soft-spoken, even-tempered and smoothly evasive through a long day of questioning. Politely but resolutely, he refused to let senators bait him into offering his views on emotional legal issues while avoiding mistakes that might have impeded his smooth sail to confirmation as chief justice.

President Bush's first Supreme Court nominee presented himself as a moderate conservative, an old-fashioned judge who believes cases should be decided from bottom-up facts, rather than from an overarching, top-down ideology.

While revealing little about what he thinks or where he would like to lead the Supreme Court, Roberts surprised liberals and conservatives with some of his answers.

He readily acknowledged, for instance, that Americans have a right to privacy that grows out of various provisions of the Constitution, including the due process clause.

Change in thinking That appeared to be a significant change in thinking for Roberts, who wrote dismissively, as a Reagan administration lawyer in 1981, of a "so-called right to privacy" not found in the Constitution.

Many conservatives have long disputed the notion of such a "right to privacy," described in rulings by the Warren court in the 1960s and forming the basis for the court's landmark abortion-rights decision in 1973.

Sen. Charles E. Schumer of New York, one of Roberts' biggest Democratic critics on the Judiciary Committee, told Roberts toward the end of the day that many senators had been "pleasantly surprised" by his testimony, including his remarks about privacy rights.

During more than eight hours of questioning, Roberts sketched a subtle self-portrait that appeared to be directed at liberals who have warned that he intends to move the judicial branch sharply to the right.

"Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for," Roberts said, after Republican Sen. Lindsey Graham of South Carolina asked whether a Roberts court would be a significant departure from the conservative one led by Roberts' mentor, Chief Justice William H. Rehnquist, who died this month.

On abortion, the most contentious issue at the hearings and the basis for much of the opposition to his nomination, Roberts gave answers that surprised and worried some of his conservative backers.

Though he refused to discuss abortion cases, Roberts left the clear impression that he would be very hesitant to overrule Roe v. Wade, the 1973 abortion-rights decision, in the near future.

Elaborating on his testimony at his federal appeals court confirmation hearing two years ago, Roberts offered a textbook description of the importance of legal precedent, essentially describing the doctrine of abortion rights as a precedent that should not be easily overruled.

'Stability' stressed "It is a jolt to the legal system when you overrule a precedent," Roberts said. He emphasized his belief in the importance of "stability" in the legal system.

The Supreme Court, he said, should consider overruling a precedent only after concluding that previous rulings on a subject had become unworkable and had been eroded by other Supreme Court rulings.

A 1992 Supreme Court decision in a Pennsylvania abortion case, which modified and reaffirmed Roe, was itself an important precedent in abortion law, he said.

By setting what appeared to be a high threshold for overruling Roe, Roberts left some of his most ardent conservative backers shaken.

"Some conservatives are saying it wasn't strong enough," said Jay Sekulow, a pro-Roberts legal activist who is close to the White House.

'Great answer' "I thought it was a great answer," said Sekulow, because it "left the door open" to eventually overruling Roe.

Because Roberts would be replacing Rehnquist, who opposed abortion rights, he is not expected to shift the balance of the court on the issue.

The issue had greater salience earlier, when Roberts was chosen to replace retiring Justice Sandra Day O'Connor. Bush is not expected to nominate a new replacement for O'Connor, an abortion-rights supporter, until after the hearings for Roberts, who could be confirmed late this month.

Roberts, who appeared far better prepared than most of the senators, had little difficulty batting away their questions.

"It's like pitching to Ken Griffey," cracked Sen. Joseph R. Biden Jr., a Delaware Democrat who chided Roberts for "filibustering" and refusing to answer questions.

The chairman of the Judiciary Committee, Sen. Arlen Specter, a Pennsylvania Republican who supports abortion rights, was the first and perhaps most effective questioner, repeatedly pressing Roberts for his views on precedents involving abortion.

Democratic Sen. Dianne Feinstein of California, whom abortion-rights activists had been counting on to draw out Roberts on the issue, was ineffective in her turn at the microphone, concentrating so hard on her prepared script that she allowed Roberts to evade her questions easily.

Other than Specter, the Republican senators seemed more interested in defending Roberts and trying to reassure their base about his conservatism than in eliciting fresh information.

Suspicions Some hard-line conservatives have been suspicious for some time about whether Roberts will be a reliably conservative vote on the court for years to come, particularly because, at age 50, he could remain on the bench for decades.

In a sign that conservative skeptics might have reason to worry, Roberts said he had "grown as a person" over the past 25 years and that such a change in 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 declined to elaborate except to say that he had renounced his youthful support for term limits for judges, which he endorsed in a memorandum written during the Reagan administration.

"That would be one of those memos that I no longer agree with, senator," he told Democratic Sen. Herb Kohl of Wisconsin, evoking a wave of laughter in the hearing room.

"I didn't fully appreciate what was involved in the confirmation process when I wrote that," said Roberts, who clearly does now.

Copyright © 2014, The Baltimore Sun
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