Responsiveness may sway opinions

WASHINGTON -- How Supreme Court nominee John G. Roberts Jr. fares in his Senate confirmation hearings this week could hinge as much on what he does not say as what he does.

With Senate Judiciary Committee hearings starting today, Democrats say they expect Roberts to explain his position on a range of established court precedents in cases involving such hot-button issues as civil rights, reproductive rights, and gender and racial equity.

But the White House and Roberts's supporters in the Republican Party are urging Roberts to duck such questions, arguing that stating his position in advance on cases he could hear as a justice could compromise his impartiality.

The issue could be the hearings' first battleground. Senator Charles E. Schumer, a New York Democrat who serves on the committee, suggested that if Roberts fails to fully answer questions, Democrats could decide to filibuster his nomination.

''It will relate very heavily into my decision and into the decision of many, many Democrats," Schumer said. ''He has to tell us who he is, judicially speaking."

To Democrats, the GOP's advice to Roberts, coupled with their unfulfilled request for more White House documents related to Roberts's nomination, makes a broader point: Without the big picture on his judicial philosophy, they may not give him a lifetime seat as chief of the nation's highest court. Without the papers Roberts wrote in the solicitor general's office of President George H.W. Bush, complete answers in the nomination hearings become more important.

''This nominee has even a greater burden to be more forthcoming because of the refusal of the administration to provide the materials which we have sought," said Senator Edward M. Kennedy, a Massachusetts Democrat. ''Roberts has the obligation to answer our questions, and the Senate has the responsibility to ask them."

Republicans, meanwhile, cite what they have termed the ''Ginsburg precedent" to argue that Roberts should not be expected to answer questions about his opinions before he ascends to the bench.

That is a reference to Supreme Court Justice Ruth Bader Ginsburg, a nominee of President Bill Clinton, who sailed to confirmation in 1993 despite dodging some 55 questions from a Democrat-controlled committee, according to a GOP review of her hearings.

Ginsburg did not answer questions on such controversial subjects as the death penalty, the separation of church and state, and racial discrimination. Schumer noted that Ginsburg did give detailed answers on other issues, including abortion, free speech, and the rights of criminal defendants, but Republicans say Ginsburg's answers should point the way for Roberts.

''General questions about judicial philosophy and approach to the law, I think, are fair game, and are a way to get to understand a judge's thinking," said Shannen Coffin, a former deputy assistant attorney general in the Bush administration. ''The closer you get, though, to applying those to specific circumstances, those sorts of questions are, in my view, serious threats to judicial independence."

Democrats say Roberts's judicial philosophy is difficult to discern because he has been a federal appeals court judge for only two years; his paper trail on weighty matters is short compared with that of someone like Ginsburg, who was a judge for 13 years before she was nominated.

Then there are the documents from the solicitor general's office. Though the White House released more than 50,000 pages from Roberts's service under President Ronald Reagan in the attorney general's office, his work during the first Bush presidency -- his most recent and highest-ranking position in the executive branch -- remains shrouded in secrecy. Since Bush nominated Roberts to succeed the late Chief Justice William H. Rehnquist, Democrats have pushed even harder for release of the documents, arguing that the chief justice has more power and therefore must be subjected to greater scrutiny.

''We simply don't know who Judge Roberts is, judicially speaking," Schumer said.

But Coffin scoffed at that idea.

'The reality is they've got plenty" of information about Roberts, he said, ''and they're not going to be happy no matter what is released."