Pressed on compassion, Roberts defers to law

WASHINGTON -- Senate Democrats challenged Supreme Court nominee John G. Roberts Jr. all week to promise that he would look beyond abstract legal questions to the human circumstances of those who would be affected by his rulings.

Again and again, Roberts declined to say what they wanted to hear.

''Somebody asked me, you know, are you going to be on the side of the little guy?" Roberts testified yesterday. ''And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution."

Reflecting on the four days of hearings that ended yesterday, liberals and conservatives came to opposite interpretations of Roberts's answers about compassion. For his skeptics on the left, Roberts's answers called into question whether he merited life tenure in such a powerful position, regardless of his considerable legal expertise.

''Let me go to the con side here," said Senator Charles E. Schumer, Democrat of New York, offering his assessment of Roberts. ''First is the question of compassion and humanity. . . . It's important to determine not just the quality of your mind but the fullness of your heart, which . . . means the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all."

But for his conservative defenders, Roberts's answers showed precisely why they saw him as fit for the job.

''Nothing better exemplifies the chasm of difference between how the left and the right think about the courts," said Sean Rushton, executive director of the conservative Committee for Justice. ''The wisdom we want is the wisdom to defend the structure of our system for everyone. What they're really saying is that the judge should bend or break the law in order to achieve a favorable short-term result."

Scholars said the tension at the confirmation hearing was the latest manifestation of a debate that has rippled through the legal world for the past century. Some legal specialists are rule-bound ''formalists" who believe in following the letter of the law. But others say judges must pay attention to the real-world consequences of their decisions.

''This debate has to do with the urge -- some say it's a defect, others say it's a positive attribute of modern justices -- that judges want to be able to do justice in every case," said Boston University law professor Jack Beermann. ''When people have a lot of discretion, they tend to use it in cases where they feel compassion, but it sometimes doesn't make a lot of sense as a matter of law."

Some of the most liberal justices in Supreme Court history have also been those who have been most willing to let their feelings for individual parties before the court spill into their legal reasoning, according to legal historians. Among them was Justice Harry Blackmun, the author of the Roe v. Wade abortion decision, who retired in 1994.

In a famous 1989 dissent to a court ruling that a badly beaten boy could not sue the government even though social workers failed to take him away from an abusive father, Blackmun used language that was hardly legalistic to argue that the boy deserved a day in court.

''Poor Joshua!" Blackmun wrote. ''Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing."

Dennis Hutchinson, a University of Chicago law professor, said even scholars who agreed with Blackmun's results sometimes found they were ''utterly lacking in legal principle" because he substituted personal feelings for constitutional law. But Blackmun was also a hero to the political left for his staunch defense of the rights of women and minorities.

Blackmun's legacy as one of the possible models for a Supreme Court justice hung over the Roberts hearing. Senator Dick Durbin, Democrat of Illinois, read to Roberts a passage from a letter Blackmun wrote: ''Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions."

Indeed, Democrats tried everything -- from taunts to pleadings -- in an effort to get Roberts to say he would similarly bring a sense of compassion to the bench.

Senator Herb Kohl of Wisconsin asked whether Roberts thought judges should be ''automatons." Senator Edward M. Kennedy of Massachusetts declared that Roberts had exhibited a ''cramped" and ''mean-spirited view of the law" in his early writings as a Reagan administration aide. And Durbin suggested that Roberts had led too comfortable a life to empathize with the underprivileged. ''Do you see the people behind the precedents, the families behind the footnotes?" Durbin asked.

Roberts made it clear that he was in the letter-of-the-law camp. Judges, he said, wear black robes ''to symbolize the fact that they are not promoting their own particular views, but they are supposed to be doing their best to interpret the law, to interpret the Constitution, according to the rule of law, not their own preferences, not their own personal beliefs."

Still, Roberts made a few concessions to those who wanted assurances that he would bring humanity to the job of chief justice. He emphasized that in private practice he had represented welfare recipients, a death row inmate, and environmental activists, in addition to his much more extensive work for corporations and Republican administrations.

And in an exchange with Senator Dianne Feinstein, Democrat of California, about the military's support for affirmative action, he pledged to consider the real-world consequences of his decisions. He also conceded that he personally believed that all children deserve an education, regardless of their immigration status.

But Roberts quickly added that only the law would matter if someone challenged a state statute that barred undocumented children from attending public school.

''It's not a question about whether you believe in educating children or not," Roberts said.