Roberts's testimony alarms conservatives
Some contend he could be moderate
WASHINGTON -- Supreme Court nominee John G. Roberts Jr.'s testimony about the existence of a right to privacy, the importance of respecting precedent, and the need for the Constitution to adapt to changing conditions has alarmed some rank-and-file conservatives, who are filling up Internet message boards with predictions that Roberts may turn out to be a moderate justice.
Many say they believe that Roberts's answers have shown him to be to the left of Justices Antonin Scalia and Clarence Thomas, whom President Bush promised to use as models in selecting new justices. Some compare Roberts to David Souter and Anthony Kennedy -- Republican appointees who proved to be moderates who supported abortion rights.
One writer on the conservative FreeRepublic.org site wrote that yesterday's questioning by Senator Joseph R. Biden Jr., Democrat of Delaware, had ''exposed Roberts" as a moderate.
''Biden gave Roberts every opportunity to even minimally associate himself with Scalia and Thomas, and he ran away from them like he was running from a burning building -- not a good sign," the post said.
Bush chose Roberts, a highly respected lawyer with a short judicial tenure, over conservative judges with longer track records on issues of importance to conservatives. Still, almost all conservative judicial groups endorsed Roberts, recognizing that his lack of a long judicial record made him less susceptible to liberal attacks.
But the first three days of Roberts's confirmation hearings, during which the nominee has taken pains to portray himself as a cautious moderate, sparked concerns among grass-roots conservatives that Roberts may join a long line of Republican Supreme Court appointees who proved to be more liberal on the bench than the presidents who chose them.
Some leaders of groups involved in the well-organized conservative coalition backing Roberts's confirmation conceded that they, too, have heard from some grass-roots members expressing concern about the nominee's testimony.
''There were a few fires . . . that had to be put out yesterday," said Manuel Miranda, who leads a daily conference call for conservative group leaders around the country.
The chief complaints, Miranda said, were from antiabortion activists. They were concerned by Roberts's comments Tuesday acknowledging a constitutional right to privacy, the basis for 1973's Roe v. Wade decision recognizing a right to an abortion, as well as his commitment to respect legal precedents. In particular, a number of conservatives expressed outrage after Roberts said he agreed with Supreme Court cases from the 1960s that struck down laws prohibiting contraception, which paved the way for Roe v. Wade.
After his testimony, conservative message boards lighted up with incredulous responses -- especially after leaders of the Christian organization Family Research Council put out a statement praising Roberts's testimony and pronouncing themselves ''pleased" that he resisted calls to say how he would rule if Roe came up again.
''Pleased???" one writer on ConfirmThem.com said. ''My gawd, run, don't walk away from this nominee! It's like Charlie Brown having the football taken away by Lucy, the rank-and-file supporters of Bush and trusting in his picks, are being fooled once again."
But some conservative leaders said they believe Roberts is giving lawyerly responses to get through the confirmation process and will ultimately be conservative.
''Judge Roberts is saying what I think everybody would have expected him to say in these areas," said Leonard A. Leo, executive vice president of the conservative Federalist Society. ''When he talked about precedents, he said, of course, all decisions from the court are entitled to respect, and you do have to consider whether it would jolt the legal system. But he also said sometimes you have to jolt the legal system."
Leo noted that Thomas also testified in confirmation hearings that he agreed with the Supreme Court opinions striking down bans on contraception. Yet once Thomas was on the court, he voted to overrule Roe v. Wade.
Other conservative leaders also expressed cautious optimism about Roberts. In an e-mail to followers, conservative leader Gary Bauer said some of Roberts's answers were not pleasing, but expressed hope that the nominee would be more conservative.
''The judge is following the script laid out for him by the White House, so many of his answers today were less than satisfying," Bauer wrote. ''But a careful reading of the transcript shows he committed to nothing once he is on the court. We are left with what we always had -- a hope and an expectation, based on the totality of his record, that if confirmed he will be part of a new conservative majority."
Still, in response to reassurances from Miranda, Bauer, and others, many rank-and-file conservatives accused the leaders of being in denial.
Yesterday, one Internet writer said: ''Such nonspecific praises are meaningless. 'Roberts is GREAT!' is not a response to the serious concerns that have been raised by conservatives about the nominee. . . . Roberts's testimony contradicts most of the prehearing arguments his supporters used."
The writer contended that, in his testimony, Roberts had distanced himself from some of the conservative views expressed in his memos while serving in the Reagan administration; said his devout Catholicism would not influence his rulings; remarked that some precedents should be respected even if they were decided wrongly; and defended his role in a gay-rights case a decade ago.
Yesterday, message boards lighted up again after Roberts testified that he believed the founding fathers intended the Constitution ''to apply to changing conditions . . . down through the ages" -- suggesting he disagrees with conservatives who maintain that the Constitution should not be reinterpreted based on changing times.
Message-board writers pounced on that statement, saying Roberts had positioned himself to the left of strict ''originalists," such as Thomas and Scalia.
But Richard Fallon, a professor at Harvard Law School who identifies himself as a liberal, said the rank-and-file conservatives may be succumbing to paranoia.
''Even the purest originalists on the Supreme Court recognize that there are exceptions," Fallon said. ''So when somebody like Roberts says there are exceptions and some room for evolutionary understanding, he's not necessarily saying anything more than Scalia or Thomas would say." 