As Questioning Begins, Euphemisms Abound

Roe v. Wade ? "I think I should stay away from discussions of particular issues that are likely to come before the court again."

War powers? "I don't want to answer a particular hypothetical."

Voting rights? "Those cases come up all the time, and I do need to avoid expressing an opinion."

Sitting at a folding table dressed up with red felt, Roberts, his bald spot exposed under the studio lights, offered a stream of such evasions: "I don't think I should express a determinative view. . . . I should not respond. . . . I can't answer that. . . . I do not feel it appropriate for me to comment."

The most inflammatory subject -- abortion -- was essentially off-limits. Both sides claim they have no "litmus test" and therefore cannot ask Roberts his views on abortion. "It's the 600-pound elephant in the room," Sen. Sam Brownback (R-Kan.) told reporters during a break. Instead, they got at the subject elliptically, asking Roberts about his view of stare decisis , the Latin term for letting precedent -- in this case, Roe v. Wade -- stand. The word abortion was uttered only six times in the first four hours of the hearing; stare decisis was cited 34 times.

Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, started things off with a query about "the issue of stare decisis and the issue of precedents."

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, shifting from the Latin, 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.

Roberts told Biden that the 14th Amendment protected a right to privacy -- an apparent nod to abortion rights -- but immediately qualified that by saying: "I think every justice on the court believes that, to some extent or another."

He seemed to take pleasure in the ambiguity. Recalling his clerkship for Judge J. Henry Friendly, he mentioned, approvingly: "He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or a conservative."

Even Sen. Edward M. Kennedy (D-Mass.), conqueror of Robert H. Bork, drew little blood. Roberts brushed off Kennedy's complaints about his 1980s memos questioning voting rights laws. "This was 23 years ago," the judge replied. "It was the position of the Reagan administration."

When Kennedy accused him of opposing a civil rights act, Roberts gave no ground. "No, Senator," he said. "You have not accurately represented my position."

The confrontation over, Roberts stood up and exhaled deeply. Kennedy gritted his teeth.