In 1991, in a case about abortion rights, President Bush's Supreme Court nominee, John G. Roberts Jr., told the court that Roe v. Wade was "wrongly decided and should be overruled" [front page, July 20].
In 2003, when Mr. Bush nominated Mr. Roberts as a judge on a federal appeals court, Mr. Roberts recanted that opinion. At his Senate confirmation hearing he explained that the opinion he expressed in 1991 was not necessarily his own but that of the president for whom he worked as a deputy solicitor general. As the government's lawyer in that case, he says, he was obliged to argue its opinion, not his own, to the court.
Mr. Roberts then cited the example of John Adams, who, as a young lawyer years before he became president, according to Mr. Roberts, defended a British soldier accused of shooting a snowball-hurling patriot in the Boston Massacre. However, Adams did not have to take the case. He did not work for the British crown or for the city of Boston as a public defender. Adams defended the soldier because he believed the man to have been unjustly accused. But that, according to Mr. Roberts, is not why he pleaded against Roe v. Wade.
The Adams-Roberts parallel is, therefore, false.
John G. Roberts Jr., if confirmed, would be the fourth Catholic on the Supreme Court. A large number of Catholic bishops have stated that they would deny communion to any Catholic public official voting for a "pro-choice" position. Several have extended that ban to include ordinary citizens who knowingly vote for such a public official. Is the bishops' communion ban to be read as including judges? If so, what is the duty of a Catholic judge presented with a case involving the application of Roe v. Wade?
While it might be inappropriate to ask Judge Roberts about his view of Roe v. Wade, would it not be appropriate to ask whether the bishops' position would compel his recusal from any such case?
DONALD E. WARD
While Democratic Sens. Patrick J. Leahy (Vt.), Charles E. Schumer (N.Y.), Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.) speak of the short judicial record of John G. Roberts Jr. ["Democrats Say Nominee Will Be Hard to Defeat," front page, July 21], it should be noted that:
* If Judge Roberts's nomination to the U.S. Court of Appeals for the D.C. Circuit in May 2001 had not been blocked by the Democratic-controlled Senate, we'd have two more years of judicial opinions to review.
* If Judge Roberts's nomination to the D.C. Circuit in 1992 had not been blocked by the Democratic-controlled Senate, we'd have 13 years of judicial opinions to review.
Complaints about a scant paper trail are like Lizzie Borden asking for mercy because she is an orphan. In any event, the past inaction by two Democratic-led Senates with respect to prior nominations of Judge Roberts to the D.C. Circuit hardly justifies the claim that he should now respond to a long stream of questions designed to elicit how he would have voted in various cases had he been on the bench and how he will vote in future cases.
The judiciary is far from independent when judicial nominees for any court are compelled to answer questions about possible cases before complaints are filed, trials are held, briefs are written or oral arguments are heard. Nor is respect for the judiciary and the cause of justice served when frivolous claims of "being out of the mainstream" are lodged against jurists who vote to uphold legislation passed by Congress and state legislatures.
The writer is a member of the Council of the Senior Lawyers Division of the American Bar Association, as well as a member of the Executive Committees of the Financial Ser- vices & E-Commerce and the Pro- fessional Responsibility Practice Groups of the Federalist Society.