The Fight Behind the Fight

"I'm in very good company even among liberal constitutional scholars and commentators," she said. "It is among serious scholars -- legal and constitutional scholars -- widely agreed to be a very poor constitutional decision."

She is quick to add: "I don't know what Judge Roberts believes. That's what people on the other side don't understand. We are not looking for particular outcomes in particular cases. We are looking for someone who has an approach and methodology of being faithful to the Constitution."

In other words, strict constructionism is not about abortion. But it kinda is.

At Roberts's confirmation hearings for the U.S. Court of Appeals, he called the 1973 Roe decision "settled." At the time, he was asked by Sen. Richard J. Durbin (D-Ill.) his position on Roe.

"... Roe v. Wade is the settled law of the land. It is not -- it's a little more than settled," Roberts responded. "It was reaffirmed in the face of a challenge that it should be overruled in the [Planned Parenthood of Southeastern Pa. v. Casey] decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey."

But the Supreme Court is quite different from an appellate court nomination -- something even the White House acknowledges. In an interview last week with the Associated Press, Attorney General Alberto Gonzales said a Supreme Court justice does not have to follow a previous ruling "if you believe it's wrong."

"If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales told the AP. "If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong."

Democratic senators are pressing the current Bush administration for access to more records from this time period.

Memos already released from his time as associate counsel to the Reagan White House reveal his views on affirmative action, integration, judicial restraint, separation of church and state and other issues. But no word on abortion.

Comments can be sent to Terry Neal at commentsforneal@washingtonpost.com.

Staff writer Mary Specht contributed to this report.