Although I agree with the Sept. 18 editorial that Judge John G. Roberts Jr. should be confirmed as chief justice of the United States, I don't agree that his legal career is "unblemished."

As a lawyer John Roberts once advised sharply curtailing federal habeas corpus, disregarding Article I of the Constitution, which states that the writ "shall not be suspended unless when in cases of rebellion or invasion the public safety may require it."

He also said that the Reagan administration should have supported a state's denial of public education to undocumented schoolchildren -- though equal protection and due process are guaranteed to all people, not just citizens.

As a staff attorney he was obliged to tell his client (the administration) what the law is and what the Constitution requires. He sometimes failed to do so.

Yet it seems clear that he is a better lawyer today. The principles to which he spoke in his testimony are incon- sistent with that earlier conduct.




A canon of the American Bar Association makes clear that people standing for election, appointment or nomination for the bench should not answer questions concerning particular issues in litigation.

E.J. Dionne Jr.'s Sept. 17 op-ed column, "The Case for a 'No' Vote on Roberts," seemed to argue that committee Democrats were entitled to "catch" Judge Roberts in prejudging a challenge to Roe v. Wade in the event such a case should come before him as chief justice. Mr. Dionne did not mention Roe, but the senators did at times and often their questions were skewed that way.

What is wrong in wanting justices who will apply the Constitution and the law in the light of precedent?

It is folly to anoint judges who say they favor (or oppose) abortion on demand in the absence of an actual lawsuit. Attempting to bind the nominee to an outcome based on generalities while ignoring particulars of a lawsuit mocks the art of judging.

Having elected legislators rather than judges make law is common sense under our democratic republic. Judge Roberts's simile in his opening statement that a judge is like an umpire was a good illustration of his core belief about jurisprudence. In his hours before the committee he provided enough detail to justify his confirmation.