John G. Roberts Jr., appearing before a Senate panel considering his nomination to be the new chief justice, immediately ran into questioning today about the Supreme Court's landmark decision on abortion and said he considers it not only "settled law" but a precedent worthy of respect.
Answering questions from Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, Roberts also said he believes the U.S. Constitution protects a right to privacy and repudiated a view expressed more than two decades ago in a memo in which he referred to a "so-called" right to privacy in the charter.
Roberts later was questioned closely on other writings from the same period that Democratic senators described as hostile to civil rights and gender-discrimination legislation. The nominee expressed strong support for laws upholding the rights of minorities and women and disputed the characterizations of memos that he said represented administration positions.
Roberts was unwilling to comment on many cases raised by senators, notably those dealing with civil liberties related to the war on terrorism following the Sept. 11, 2001, attacks. He also skirted discussion of cases regarding the Constitution's "commerce clause" under which Congress has exerted authority over a wide range of otherwise state and local matters. And he declined emphatically to talk about a case before his federal appeals court in Washington in which he has been asked to recuse himself for alleged conflict of interest. The case, involving the legality of military tribunals advocated by the Bush administration for terrorism suspects, was before the court at a time when he was being interviewed for a possible Supreme Court vacancy.
The lengthy sparring between Roberts and the senators came a day after Roberts delivered an opening statement in which he declared that "judges are not politicians" and vowed to approach any cases brought before the court with an open mind. He described a humble view of the court's role, likening it to that of a baseball umpire, rather than a political player.
Roberts, 50, was nominated by President Bush to replace Chief Justice William H. Rehnquist, who died of cancer Sept. 3 at the age of 80. If confirmed, Roberts would be the youngest chief justice in more than 200 years.
He was originally nominated to succeed Justice Sandra Day O'Connor, who announced in July that she was retiring. But Bush decided to make Roberts his nominee for chief justice and to replace O'Connor, the first woman named to the Supreme Court, at a later date. The aim, in part, is to have a full nine-member court in place by the time it begins its new session Oct. 3. O'Connor has said she would stay on until her successor is confirmed.
Much of the initial questioning by Specter, who supports abortion rights, involved the principle of stare decisis, or respect for precedent, especially as applied to Roe v. Wade, the 1973 Supreme Court decision that legalized abortion.
Roberts refused to say whether he sees any erosion of precedent regarding that decision, explaining that he did not want to get into the application of legal principles to a particular case that might come before the court. But he noted that "the central holding" in Roe v. Wade was reaffirmed by a 1992 Supreme Court decision, Planned Parenthood v. Casey, which "is itself a precedent that would be entitled to respect under stare decisis."
Roberts said, "I do think it is a jolt to the legal system when you overrule a precedent" and that "it is not enough that you may think a prior decision was wrongly decided." Other factors must be considered, he said, including stability, the predictability of the court and whether the precedent had been eroded by subsequent developments.
Sometimes, he said, overturning precedent is "a price that has to be paid," such as the in the 1954 Brown v. Board of Education ruling against racial discrimination.
Roberts was asked about his statement in a 2003 Senate hearing, when he was seeking confirmation as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit and said he regarded Roe v. Wade as "the settled law of the land."
"Well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis," Roberts said.
Asked about whether his personal views or his religious faith -- Roberts is a Roman Catholic -- would play any role in his approach, Roberts concurred with Specter's quotation from John F. Kennedy, when he was running for president in 1960 and said, "I do not speak for my church on public matters, and my church does not speak for me."
"I agree with that, senator, yes," Roberts said. "There is nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court fairly under the principle of stare decisis."
Roberts said he agrees that "the right to privacy is protected under the Constitution in various ways." He said it was "fair" to say he does not hold the view today that was reflected in a 1981 memo, when he was a young lawyer in the Reagan administration and skeptically referred to a "so-called" right to privacy.
Under questioning by the ranking Democrat on the committee, Sen. Patrick Leahy of Vermont, Roberts said, "I believe very strongly in the separation of powers" among the three branches of government." Further, he said, "I believe that no one is above the law in our system, and that includes the president."
Regarding his approach to the federal bench, he said, "I prefer to be known as a modest judge."
Roberts subsequently was questioned closely by Sen. Edward M. Kennedy (D-Mass.) about his civil rights views based on some of the early 1980s memos he wrote when he worked as a lawyer for the Reagan administration in the Justice Department and the White House.
"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 told Roberts. He said documents given to the committee by the White House indicated "that you did not fully appreciate the problem of discrimination in our society."
Asked specifically about the 1964 Voting Rights Act, Roberts agreed that voting is a fundamental constitutional right.
"It is preservative, I think, of all the other rights," he said. "Without access to the ballot box, people are not in the position to protect any other rights that are important to them."
Roberts stressed that some quotations from his writings, read aloud by Kennedy, "represented my effort to articulate the views of the administration . . . for which I worked 23 years ago." He also disputed Kennedy's characterizations of those views.
Responding to questions from Sen. Charles Grassley (R-Iowa), Roberts said there was no disagreement in the Reagan administration that the Voting Rights Act's protections were essential and should be extended.
Sen. Joseph Biden (D-Del.) engaged Roberts in some sharp exchanges, challenging him to be more specific in commenting in decided court cases and repeatedly interrupting his answers, which Biden at one point called "misleading." Specter, the committee chairman, admonished Biden to let Roberts finish his responses.
Roberts denied Biden's suggestion that comments he made in 1999 showed opposition to a federal law, written by Biden, that cracked down on violence against women. The nominee also bristled when Biden asked him whether gender discrimination was a perceived problem or a real one.
"Of course gender discrimination is a serious problem," Roberts said. "It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination. There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender."
Asked by Sen. Jon Kyl (R-Ariz.) about Supreme Court references to foreign laws as precedents in recent cases, Roberts said the practice raises concerns for him because foreign judges have no accountability to the American people and because "you can find anything you want" in various countries' laws.
"I think it's a misuse of precedent" to rely on foreign laws in U.S. judicial rulings, Roberts said.
In response to another question from Kyl, Roberts said his work as a law clerk years ago for Judge Henry Friendly of the U.S. Court of Appeals for the 2nd Circuit and for Rehnquist on the Supreme Court had taught him important lessons. He said Friendly liked the fact that editorial writers "couldn't decide whether he was a liberal or a conservative," because "he wasn't adhering to a political ideology," but rather to the rule of law.
Pressed by Sen. Herbert Kohl (D-Wis.) on whether he still supports 15-year judicial term limits, as he had once proposed as a young lawyer, Roberts drew a laugh when he answered, "You know, that would be one of those memos that I no longer agree with, senator."
He took a self-deprecating tone when he added later, regarding his early writings, "there are many areas where it appears that I knew a lot more when I was 25 than I think I know now when I'm 50. I had a lot of different experiences in the intervening period that give you valuable perspective. . . . I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers."
Roberts ducked when Kohl asked him if he would be pleased to see President Bush nominate a woman to replace Justice O'Connor. "I don't think it's appropriate for me to comment in any way about the president's future selections other than to say that I'm happy with his past ones," the nominee said.
Sen. Dianne Feinstein (D-Calif.) sought to draw Roberts out on issues ranging from equal rights for women to protection of endangered species. She raised President Kennedy's statement that he believed in an America where separation of church and state was absolute, and asked, "Do you?"
Roberts said he could not answer, in part because "I don't know what you mean by absolute separation of church and state." He added, "I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source."
Roberts also demurred when asked whether federal courts should get involved in "end-of-life decisions," saying he could not reply in the abstract because the issue was likely to come before the Supreme Court.
Sen. Russell D. Feingold (D-Wis.) told Roberts that if he is confirmed, he will "essentially disappear from public view" at the Supreme Court, which has up to now barred any television coverage of its proceedings. Feingold and a Republican senator, John Cornyn of Texas, urged Roberts to consider changing that practice.
"It's not something I have a settled view on," Roberts said.
Sen. Lindsey O. Graham (R-S.C.) pressed the nominee to give Americans a fuller picture of who he is and asked him to compare himself to other justices. Queried as to whether it is fair to say he is "in the mold of a Rehnquist," his late mentor, Roberts said, "Well, you know, it's -- I admire the late chief justice very much, and -- but I will have to insist that I will be my own man, and I hesitate to be put in anybody's mold." He allowed that his own judicial philosophy "in many respects" is similar to Rehnquist's "in its recognition . . . of the limited role that judges should have and a sufficient and appropriate modesty and humility."
Asked if he considers himself "more conservative" than Justice Antonin Scalia, who has been held up by President Bush as an ideal Supreme Court justice, Roberts said, "I don't know."
As for how he would like historians to remember him, Robert quipped, "I'd like them to start by saying he was confirmed." He added, "Whether they say that or not . . . I would like them to say I was a good judge."