Abortion Issue Looms Large For Roberts

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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WASHINGTON – With the first confirmation hearing of a nominee to the U.S. Supreme Court in more than a decade set to begin here this afternoon, at least two key elements of the event are largely unresolved: the manner in which senators will approach the issue of abortion and the length of the hearing. What has become clear in recent days is that the answers to the questions are intimately linked.


The central issue of the hearing on the president’s nomination of Judge John Roberts Jr. to replace William Rehnquist as chief justice is expected to be the right to privacy that the Supreme Court established in overturning a Connecticut law that banned the sale of contraceptives in 1965, and which it later affirmed in the Roe v. Wade case that nullified state bans on abortion. Several Democrats and at least one Republican on the Senate’s 18-person Judiciary Committee have said they will press Judge Roberts on the matter. It is unclear, though, how abortion will be broached.


The chairman of the committee, Senator Specter, a Republican of Pennsylvania, said yesterday on NBC’s “Meet the Press” that he will not directly ask Judge Roberts to take a stand on Roe v. Wade. An ardent defender of abortion rights, Mr. Specter said he will instead get at the issue by asking Judge Roberts if he thinks the court was correct in finding a right to privacy in the Constitution in the majority opinion on Roe v. Wade.


“I think that’s a fair question,” Mr. Specter said, smiling, “and I intend to ask it.”


The contortions that Mr. Specter and other committee members have gone through in outlining the questions they regard as acceptable and the ones they don’t certainly have meaning. Mr. Specter has said his reluctance to ask for a commitment on specific cases stems from a desire to keep Judge Roberts and future nominees from appearing to decide cases ahead of time. Mr. Specter has also said that questions should be based on a nominee’s extant writings.


Still, several senators have expressed frustration at not being able to find either explicit or personal writing from Judge Roberts on a number of contentious issues. One sign of this is the call for additional documents from Judge Roberts’s 25-year career, particularly those from his five-year tenure as principal deputy solicitor general ending in 1993. The Bush administration, backed by Mr. Specter, has so far denied those requests.


Senator Schumer did not say yesterday whether he intends to part ways with Mr. Specter by directly asking Judge Roberts whether, if confirmed, he would support Roe v. Wade. A spokesman for the senator, Israel Klein, instead referred to a list of 87 questions Mr. Schumer put to Judge Roberts in late July as “fair game,” adding that more questions are “certainly possible.” Mr. Schumer has met privately with Judge Roberts three times.


In a sign of questions to come, Mr. Schumer recently praised Justice Ginsburg for addressing questions about Roe v. Wade during her confirmation hearing in 1993. Senator Feinstein, a Democrat of California, has said she will ask direct questions about the case.


Judge Roberts will not be caught flatfooted by such questions. Known for meticulous preparation, the judge reportedly prepared himself for this week’s hearing with 10 practice rounds of questions from colleagues posing as senators. And he faced questions from the Senate Judiciary Committee following his nomination two years ago by Mr. Bush for his current job as a judge on the U.S. Court of Appeals for the Washington, D.C., circuit.


Mr. Schumer, who voted against Judge Roberts the last time he appeared before the committee, has said he has not made up his mind this time around. A number of Democratic senators from states that went for Mr. Bush last year are under pressure to vote for Judge Roberts, who received a unanimous “well qualified” rating from the American Bar Association following his nomination and whose credentials and writings have so far yielded little if anything to would-be detractors.


Some senators have said the significance of the position to which Judge Roberts has been nominated gives them greater latitude in the manner and intensity of their questioning. In this, they can expect to have an ally in Mr. Specter, who wrote in an early version of the opening remarks he will deliver today that senators will be free to ask whatever questions they want. In additional to privacy rights, the chairman is expected to grill Judge Roberts about recent Supreme Court rulings affecting the rights of Congress.


“While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the court,” Mr. Specter said in the draft of his opening remarks, “senators may ask whatever they choose and the nominee is similarly free to respond as he chooses. It has been my experience that the hearings are a subtle minuet with nominees answering as many questions as they think they have to in order to be confirmed.”


As of yesterday, the length of the hearing appeared to be a matter of internal conflict. The hearing was delayed a week when Mr. Bush withdrew his nomination of Judge Roberts to replace Justice O’Connor before resubmitting the judge’s name to replace Rehnquist, who died last Saturday. Mr. Specter, who wants the hearing to conclude in time for the full Senate to take up a vote before the Supreme Court returns to session October 3, has nonetheless assured committee members that they will have sufficient time to ask as many questions as they wish.


Before Judge Roberts was nominated to replace Rehnquist, Mr. Specter’s staff said two rounds of questions would precede a third, open-ended round. In a revised schedule released on Friday, Judiciary Committee staff did not include a provision for a third round. A spokeswoman for the ranking Democrat on the committee, Senator Leahy of Vermont, said yesterday that the third round is not in question.


“Negotiations are done,” the spokeswoman, Tracy Schmaler, said. “The result is unlimited rounds. There could be third, fourth, or fifth rounds, depending if senators still have questions.”

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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