The Issue Senators Dare Not Speak of by Name

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."

"Are you sending us a message?" Sen. Patrick J. Leahy (D-Vt.), the ranking Democrat on the committee, asked hopefully. Democrats labored to unmask Roberts as a fierce conservative, but they were largely thwarted.

The clock in Hart 216 neared 11 this morning, and Sen. Edward M. Kennedy, the Democrats' liberal lion, was on deck to question Roberts. He tapped his pencil, fixed his tie, adjusted his glasses, scratched his brow, leaned his cheek on his fist and scowled down at the nominee. Sens. Tom Coburn (R-Okla.) and John Cornyn (R-Tex.), two of the committee's conservatives, left the room rather than expose themselves to the exchange.

"I'm 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, drawing attention to Roberts's youth by observing that Brown vs. Board of Education was decided "the year before you were born."

Kennedy wanted to know why Roberts once wrote that there was "no evidence of voting abuses nationwide."

"This was 23 years ago," the judge replied. "It was the position of the Reagan administration." As Roberts answered, Kennedy interrupted him half a dozen times, drawing three rebukes from Specter.

"You vehemently opposed the Civil Rights Restoration Act," Kennedy accused.

"No, senator," Roberts replied. "You have not accurately represented my position." Kennedy interrupted twice more, drawing two more Specter interventions.

"I was not formulating policy," Roberts finally managed to say. "I was articulating and defending the administration's position."

Specter stepped in. "This," he said, "is a good time for a 15-minute break."

Roberts stood up and exhaled deeply. Kennedy gritted his teeth, then went to the television cameras and pronounced himself "disappointed" and "troubled."

The hearing proceeding rather calmly and respectfully -- until Biden had his turn. The senator sought to extend -- and, indeed, torture -- Roberts's baseball metaphor from Monday. "The founders never set a strike zone," Biden reported, and Roberts smiled politely. Biden spent nearly nine of his 30 minutes of question time delivering an opening statement, then said: "Let me get right to it."

Biden, skipping the stare decisis , asked Roberts directly about abortion.

"That is in an area where I think I should not respond," Roberts said.

"Why?" Biden demanded. When Roberts tried to explain himself, Biden interjected "that is not true" and, shaking his head sadly, said, "aw, judge, judge."

Specter tried to referee. "Wait a minute, Senator Biden," the chairman said. "He's not finished his answer."

"He's filibustering, senator," Biden responded.

To Roberts, Biden said: "Go ahead. Go ahead and continue not to answer."

Biden was caustic and personal. Discussing an old Roberts memo on gender discrimination, the senator accused Roberts of "very poor staff work" and said: "I hope you don't still hold that view, man."

Roberts got his revenge when Biden quizzed him about gender discrimination. Biden cut the judge off repeatedly, saying "my time's running out."

Roberts indulged in a small measure of revenge. While Biden fired off a series of questions without allowing Roberts to answer, the nominee finally replied: "Well, I was about to lay it out. You said you didn't want to hear about it." The room filled with laughter. Biden did not smile.

© 2005 The Washington Post Company