WASHINGTON—Abortion quickly emerged as the pivotal issue of Supreme Court nominee John Roberts' confirmation battle as lawmakers and advocates on both sides of the aisle tried to read between the lines Thursday to determine whether he would work to overturn Roe v. Wade.
Roberts' sparse written record on abortion and his carefully worded public statements on the topic have left Democrats and at least one Senate Republican—U.S. Sen. Sam Brownback of Kansas—wary.
Advocates are parsing the few words out there: his statements at his confirmation hearing two years ago for the D.C. Circuit Court and a brief he signed while deputy solicitor general at the Justice Department. The brief, seeking to reverse the 1973 ruling recognizing abortion as a constitutional right, said that "we continue to believe that Roe was wrongly decided and should be overruled."
Roberts and his supporters have said that in the brief he was advocating on behalf of a client—the U.S. government—and it should not be read as reflecting his own personal beliefs. He was one of nine lawyers who signed the brief.
At his appellate court confirmation hearing he assured senators that he viewed Roe v. Wade as "the settled law of the land."
"There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent," he said.
But those comments are now getting a second look because when he made them he was speaking as an appellate court nominee who would have to abide by Supreme Court precedent. On the Supreme Court, he would have the constitutional authority to cast it aside.
Attorney General Alberto Gonzales seemed to give some ammunition to abortion rights supporters on Thursday. In an appearance on ABC's "Good Morning America" Gonzales said that respect for precedent is more important for an appeals court judge than a member of the Supreme Court.
"When you're a circuit court judge like Judge Roberts is today, you must respect and adhere to precedent of the Supreme Court. Once you become a Supreme Court justice, that is not necessarily so," Gonzales said.
Abortion rights groups don't buy the argument that Roberts was just arguing for a client when he signed a brief noting that Roe was wrong. They note that he was a political appointee of the first President Bush at a time when his administration was actively seeking to roll back Roe v. Wade.
"He chose to be a member of an administration with pro-life views at a time when those views were very, very relevant," said Frances Kissling, president of Catholics for a Free Choice. "That says a great deal."
Conservative groups, who have made getting a like-minded jurist to overturn Roe v. Wade on the nation's highest court a high priority, have been loudly praising Roberts' selection.
But Brownback has said he wants to hear whether Roberts, as a nominee to the Supreme Court rather than an appellate court, believes Roe is settled law.
There are a number of clues suggesting that Roberts—a devout Roman Catholic whose wife does pro bono legal work for the Washington-based anti-abortion group Feminists for Life—personally opposes abortion. But there's no record of him ever having stated publicly what his position is.
Most Sundays Roberts and his family attend the Church of the Little Flower in a leafy area of Bethesda, Md.
The pastor there, the Rev. Msgr. Peter Vaghi, has made no secret of his opposition to abortion. He wrote in a February 2004 meditation that "our church is always and will always be on the side of life, from conception until natural death."
That was written when Vaghi was at the helm of St. Patrick's Church in downtown Washington, D.C. Vaghi married Roberts and his wife, Jane Sullivan Roberts, in 1996, and the couple followed him when he was transferred to Church of the Little Flower about a year ago.
But legal experts say that even if Roberts does oppose abortion, it is premature to infer that he would overturn Roe if given the chance. They point to Justice Anthony Kennedy, also a Catholic, who has said he opposes abortion but who nonetheless cast a crucial vote upholding Roe.
The Supreme Court has two abortion cases before it in the coming term, neither of which would give the justices a chance to strike at the heart of Roe. One deals with parental notification and the second with protests at abortion clinics.
Roberts' friends say he has always been able to draw the line between his personal beliefs and his work and doesn't wear his religion on his sleeve.
"John is like a lot of Catholics. He's very private about his relationship to God," said Shannen Coffin, a Washington lawyer who had attended the same church as Roberts.
"He goes to church every Sunday, but it's not something he talks about."
Catholic groups warned against making an issue of his religious faith.
"A person's religious faith, and how they live that faith as an individual, has no bearing and no place in the confirmation hearing," said Joe Cella, president of Fidelis, a Catholic group formed to support conservative judges.
(c) 2005, Knight Ridder/Tribune Information Services.
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