- The Washington Times - Wednesday, September 14, 2005

Federal Judge John G. Roberts Jr. said yesterday that he respects the legal precedence of Roe v. Wade — the landmark case that established federal abortion rights — and said that overturning it would “jolt” the stability of the judiciary.

Throughout more than nine hours of testimony yesterday, President Bush’s nominee to be chief justice of the United States repeatedly declined to answer questions about specific cases such as Roe, but said Supreme Court precedents in general should not be overturned just because a case has been wrongly decided.

“It is a jolt to the legal system when you overrule a precedent,” Judge Roberts told senators. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided.”

Senate Judiciary Committee Chairman Arlen Specter, a pro-choice Pennsylvania Republican, wasted no time getting right to the heart of the Supreme Court nomination fight with an opening salvo of tough questions about abortion. Mr. Specter inquired whether the Constitution contains a “right to privacy,” an unwritten phrase that is the basis of abortion rights.

“The right to privacy is protected under the Constitution in various ways,” Judge Roberts said. “It’s protected by the Fourth Amendment, which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

“It’s protected under the First Amendment dealing with the prohibition on establishment of a religion and guarantee of free exercise,” he added. “It protects privacy in matters of conscience.”

Judge Roberts’ answers threw several members of the committee slightly off their partisan game.

Sen. Jeff Sessions, an Alabama Republican who thinks Roe is “a lawless decision that should be overturned,” said he has no confidence that Judge Roberts will overturn Roe if given the opportunity.

“I don’t know how to read it,” he said of Judge Roberts’ testimony. “It made me realize that I don’t know what he’ll do.”

Sen. Charles E. Schumer, New York Democrat and leading Roberts inquisitor, told the judge that he was “pleasantly surprised by some of your answers today.”

Several Democrats took issue with Judge Roberts’ analogy during an opening statement Monday comparing judges to umpires who call the game but don’t make the rules.

“As much as I respect your metaphor,” said Sen. Joseph R. Biden Jr., Delaware Democrat, “it’s not very apt because you get to determine the strike zone.”

Sen. Herb Kohl, Wisconsin Democrat, advised the nominee that judges are not “automatons.”

Judge Roberts agreed, but said judges should not “look to your own values and beliefs,” but rather to the Constitution.

“Judges wear black robes because it doesn’t matter who they are as individuals,” he said. “That’s not going to shape their decisions. It’s their understanding of the law that will shape their decisions.”

Judge Roberts’ trademark modesty — a term he often uses to describe his judicial philosophy — was evident yesterday when he reminded the committee several times that he might not be confirmed, in which case he would continue in his present position on the U.S. Court of Appeals for the D.C. Circuit.

Asked about a statement made by Supreme Court Justice David H. Souter during his confirmation hearings, Judge Roberts demurred.

“Well, I don’t want to directly comment on what Justice Souter said,” he explained. “He’s either going to be a colleague or continue to be one of my bosses. So, I want to maintain good relations in either case.”

Judge Roberts’ quick wit surfaced several times during the long day, such as when he was asked what he’d like history to say about him.

“I’d like them to start by saying he was confirmed,” he shot back.

When asked whether he thought Mr. Bush should nominate a woman to the high court, Judge Roberts replied: “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 am happy with his past ones.”

Mr. Kohl, who had asked the question, smiled and said amid the laughter, “You’re not an automaton.”

But that’s not to say that yesterday’s proceedings didn’t have sharp moments.

At one point, Judge Roberts emphatically told Sen. Edward M. Kennedy, Massachusetts Democrat, that the senator did “not accurately represent my position.”

In another exchange, Judge Roberts took deep exception to the suggestion by Sen. Dianne Feinstein, California Democrat, that he doesn’t believe in equality for women. She quoted from a memo in which he wrote, “Some might question whether encouraging homemakers to become lawyers contributes to the common good.”

Judge Roberts dismissed the line as an insult to lawyers — of which he said there are too many.

“That’s a common joke that goes back to Shakespeare,” he said. “It had nothing to do with homemakers.”

Any hostility to women’s rights “is totally inconsistent and rebutted by my life,” he added. “I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn she has equal citizenship rights with her brother.”

Mrs. Feinstein said she didn’t “want to belabor it” — and moved on to other questions.

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