Washington Sketch

The Issue Senators Dare Not Speak of by Name

Senate Judiciary Committee Chairman Arlen Specter (R-Penn.) holds a chart listing cases dealing with abortion during the Roberts confirmation hearings Tuesday. (Mark Wilson-Getty Images)
By Dana Milbank
Washington Post Staff Writer
Tuesday, September 13, 2005; 3:09 PM

Of the many questions to emerge during this morning's confirmation hearing for John G. Roberts Jr., two clearly stood out: Who is Stare Decisis? And what does Roberts think of her?

Thirty-four times this morning, the senators and the nominee mentioned stare decisis -- the Latin term for letting existing precedents stand. By contrast, abortion, the subject on everybody's mind as senators decide whether to confirm Roberts as chief justice, got only six mentions. That's no coincidence: While both sides claim they have no "litmus test" and can't ask Roberts his views on abortion or the Roe v. Wade decision that made it legal, they can get around this by asking what he thinks by asking him about abortion euphemisms such as stare decisis and "privacy" (11 mentions).

"I begin collaterally with the issue of stare decisis and the issue of precedents," began Sen. Arlen Specter (R-Pa.), the chairman of the Senate Judiciary Committee.

Roberts knew where this was going. "While I'm happy to talk about stare decisis and the importance of precedent, I don't think I should get into the application of those principles in a particular area," he said.

Specter was not deterred. "Do you think that the cases which have followed Roe fall into the category of a 'super' stare decisis designation?" he pressed. Offering a bit of translation, Specter wondered whether "Roe might be a super-duper precedent."

Roberts finally showed some leg on stare decisis . Roe "is settled as a precedent of the court," he said, "entitled to respect under principles of stare decisis ."

That was about the most the senators could get out of Roberts. Roe v. Wade may not be a "super-duper" untouchable precedent, but it should be respected.

Democrats found such answers from Roberts maddening, because he avoided stating his specific views on a wide range of legal issues, including civil rights, executive power and abortion. Republicans defended Roberts's ability to say nothing. When Sen. Joseph Biden (D-Del.) hectored Roberts about his non-answers, Specter urged the senator to let Roberts finish his answer.

"His answers are misleading, with all due respect," Biden said.

"They may be misleading," the chairman replied, "but they are his answers."

In truth, both sides have in Roberts something of a pig-in-a-poke. Conservatives, based on private assurances, are confident that Roberts will side with them on issues before the court. Liberals think the same thing, in large part because of the conservatives' confidence.

But the nominee warned that he could defy predictions. Roberts told the senators that Justice Robert H. Jackson, nominated to the court by Franklin D. Roosevelt, was one of the justices he admires most. "As he went to the court . . . he took an entirely different view of a lot of issues, in one famous case even disagreeing with one of his own prior opinions," Roberts said. "He wrote a long opinion about how he can't believe he once held those views."

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