Nominee exhibits several deft moves

WASHINGTON -- Day Two of the Senate Judiciary Committee hearings featured Judge John G. Roberts Jr. doing his own performance of the hit single, ''50 Ways To Stay Undercover."

Everyone knew that Roberts would routinely dodge senators' questions on contentious areas of the law. Avoiding being pinned down on specific issues has become standard operating procedure for Supreme Court nominees, practiced by Democrats and Republicans alike.

But the first day of questioning revealed just how many ways this veteran Washington bureaucrat and Supreme Court litigator could politely evade aggressive senators:

Tactic No. 1: Avoid first-person answers. When asked by Senator Edward M. Kennedy of Massachusetts whether he had any doubts about the constitutionality of the 1964 Civil Rights Act, Roberts responded that he was ''not aware of any questions that have been raised concerning that."

Tactic No. 2: Invoke the ''independence and integrity" of the judiciary. This means demurring on any issue that might come before the court. ''I think nominees have to draw the line where they're comfortable," Roberts said.

Tactic No. 3: Claim ghost-writer status. ''It was my job to articulate the administration's policy," Roberts said in answer to a question about a Reagan-era memo Democrats have seized upon.

Tactic No. 4: Stonewall. ''I can't elaborate beyond what's in the memo," he said at one point, responding to questions about his views in a 1982 gender-discrimination case.

Tactic No. 5: Borrow from a liberal favorite. ''To use Justice [Ruth Bader] Ginsburg's words," Roberts told Senator Joseph R. Biden Jr. of Delaware, '' 'no hints, no forecasts, no previews.' "

Noting that the normally cool and collected Roberts got rattled under Biden's intense questioning, Democrats today plan to ratchet up efforts to pin down the nominee on his views on legal issues -- and to crack his genial demeanor.

Republicans, meanwhile, are betting that Democrats will face a backlash if they appear to be insulting Roberts rather than asking questions. Some cited Kennedy's on-air assertion yesterday that Roberts's legal views were ''mean-spirited" as an example of Democratic overreach.

Roberts gave a clear, direct response to one question about his views. The nominee, on his way to lifetime tenure on the highest court in the land, no longer believes in judicial term limits.

''That would be one of those memos that I no longer agree with," Roberts said with a chuckle.

Roberts isn't the only one who demonstrated a change of heart. His Republican supporters now are singing a different tune about the American Bar Association, long considered too liberal and too likely to issue mediocre ratings to Republican judicial candidates, including 1991 nominee Clarence Thomas.

One of the first judicial moves President Bush made in 2001 was to strip the ABA of its longstanding quasi-official role in vetting nominees. Conservatives applauded.

But the ABA still issues its own ratings. And when Roberts earned high marks, conservatives turned around and applauded its rigor.

Religious conservatives nearly stormed off the Roberts bandwagon this summer when word leaked out that as a private lawyer Roberts had done free legal work on gay rights and capital punishment cases.

It took a flurry of calls from pro-Roberts strategists -- with reassurances that Roberts's role was mostly limited to playing the role of conservative Supreme Court Justice Antonin Scalia in mock arguments -- to keep the coalition in line.

Yesterday, under questioning from Specter, a Republican who earned the enmity of social conservatives for his support of abortion rights, Roberts described various privacy rights implicit in the Constitution. He also left the impression that he would value court precedent if presented with a case involving Roe v. Wade, the 1973 Supreme Court ruling supporting abortion rights.

''Settled expectations" with the American public ''is a very important consideration," Roberts said, adding that overturning landmark decisions can cause a ''jolt to the legal system."

Some blogging commentators on the right immediately sounded the alarms, raising renewed fears that Roberts would turn out to be another David Souter -- a moderate Republican who has dismayed the right by refusing to overrule Roe. Bruce Hausknecht, judicial analyst for a lobbying arm of the activist group Focus on Family, wrote that ''Roberts has said a few things already which make me uncomfortable."

But while key activist leaders have long feared ''another Souter," yesterday they mostly stayed on message in support of Bush's nominee.

Tony Perkins, president of the Family Research Council, said the activists behind Roberts understand he is a cautious conservative.

''I think the undoing of Roe will be a gradual process," Perkins said.