Pressed on Roe, Roberts cites respect for precedent

WASHINGTON -- Supreme Court nominee John G. Roberts Jr. said yesterday that he believes the Constitution encompasses a fundamental right to privacy -- the underpinning principle of the Roe v. Wade decision establishing a right to abortion -- and said that if he's confirmed as the nation's chief justice, he would tread carefully when considering reversing cases like Roe that are ''settled as precedent."

But Roberts stopped short of giving an explicit opinion on whether the landmark ruling should be upheld, and repeatedly refused to say whether he supports Roe and a host of other court rulings. Though he repeatedly insisted that answering such questions would compromise his judicial impartiality, Roberts said the high court's precedents should be given considerable respect.

''It is not enough that you may think the prior decision was wrongly decided," Roberts continued. ''You do look at these other factors like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments."

In his second appearance before the Senate Judiciary Committee, Roberts, a 50-year-old federal appeals judge, appeared polished and composed during a grueling, 10-hour day answering questions from the panel that will decide whether the full Senate should consider him for the top judicial post in the United States. The questions ranged from confrontational to mundane, and at least two days of questioning remain, but few hurdles emerged to Roberts's confirmation.

Democrats sought to question his judicial philosophy and his commitment to equal rights, while Republicans talked up his sterling credentials as a federal appeals judge and a top legal mind. Through it all, Roberts appeared poised and cool.

He deftly handled friendly questions from Republicans and parried with Democrats who offered more pointed queries. Building on the baseball analogy Roberts used in his opening statement Monday, Senator Joseph R. Biden Jr., a Delaware Democrat, likened questioning him to ''pitching to Ken Griffey," the Cincinnati Reds' home-run hitting outfielder.

Democrats contended that Roberts used the notion of judicial impartiality to dodge tough questions and cloak his conservative views. When Roberts did take on a question, they said, his answers seemed designed to avoid controversy, which could risk his confirmation.

''Almost on every major question it is, 'On the one hand, on the other hand,' " said Senator Charles E. Schumer, Democrat of New York. ''A nominee for the highest judicial position in the land has an obligation to answer questions head-on."

Though Democrats and liberal groups contended that Roberts shed no light on his views on abortion, committee chairman Senator Arlen Specter -- a Pennsylvania Republican who supports abortion rights -- pronounced himself satisfied with Roberts's response. Indeed, Roberts's handling of that line of questioning seemed designed to defuse one of the main arguments his opponents intended to use against him, since abortion-rights groups have been among the most vocal in pushing for his defeat.

Though they grilled him on issues such as civil rights and gender equity, Democrats seemed to make little headway, and at times were visibly frustrated by Roberts's oft-repeated contention that he couldn't answer questions about individual cases. At one point, Biden couldn't contain his exasperation.

''He's filibustering," Biden contended, calling Roberts's answers ''misleading."

Specter came to Roberts's defense. ''They may be misleading, but they're his answers," he snapped.

Biden relented with a wry smile. ''Go ahead and continue not to answer," he said to Roberts.

Senator Edward M. Kennedy, Democrat of Massachusetts, cited a series of memos Roberts wrote as a young Reagan aide where he urged a narrow interpretation of the Voting Rights Act.

''I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings," Kennedy said. Referring to the civil rights movement, he said, ''It also seems that you were trying to undo the progress that so many people had fought for and died for in this country."

Though Roberts did not repudiate the memos, he said he was advocating on behalf of the Reagan administration and wasn't necessarily stating his own opinions. He said he supports the 1954 Brown v. Board of Education decision, the landmark ruling that ended school segregation, and that subsequent civil rights and voting rights legislation are valid under the Constitution.

''Without access to the ballot box, people are not in the position to protect any other rights that are important to them," Roberts said.

But Kennedy pointed out that the Voting Rights Act is up for renewal in 2007 and that Roberts didn't rule out a challenge on the law's constitutionality.

Roberts said he believes discrimination is intolerable if it's proved to be the intended result of an action, but he did not address discrimination that happens as an unintended consequence.

''This is such an overarching issue of our time," Kennedy said. ''Voting is the lever by which we have made so much progress."

At one point, Roberts had a testy exchange with Senator Patrick J. Leahy, the Vermont Democrat who is his party's top-ranking committee member. Sparring over the wartime powers of the president and Congress, Roberts agreed with Leahy that the president is not ''above the law," but refused to respond to Leahy's contention that Congress can end a military action, saying that such a matter could come before the court in the future.

''Isn't this kind of 'hornbook' law?" Leahy said. ''Charged as [the president] is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?"

Senator Dianne Feinstein, Democrat of California and the committee's only woman, pressed Roberts on a series of memos he produced where he questioned whether homemakers should become lawyers, opposed the Equal Rights Amendment, and dismissed as a ''canard" the notion that women suffer from wage discrimination.

Roberts said that the comment about lawyers was intended as a joke and that the others were simply legal opinions. He noted that he married a lawyer and has three sisters who work outside the home.

''I have always supported and support today equal rights for women, particularly in the workplace," Roberts said.

Specter, who has come under fire from conservatives in his party for his support of abortion rights, opened the hearing with a question on Roe v. Wade. He asked Roberts whether Roe could be considered a ''superduper precedent" based on the 38 times the court has affirmed it, and unveiled a poster-sized chart listing each of those cases.

Roberts wouldn't directly answer that question, but he did agree with Specter that post-Roe rulings are themselves precedents that should be accorded respect.

''A lot of people would like to have him give a definitive answer. I think he's within his rights to say he will not do that," Specter said.

Globe correspondent Alan Wirzbicki contributed to this report. Rick Klein can be reached at rklein@globe.com.