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Roberts stresses restraint, refuses to be pinned down

WASHINGTON—Supreme Court nominee John G. Roberts distanced himself Wednesday from both the nation's most conservative and most liberal jurists, insisting that modesty and restraint would be the hallmark of his tenure as Chief Justice, and refusing to be pinned down on specific stands he'd take on questions before the court.

On the second day of questioning by the Senate Judiciary Committee, Roberts spoke at length about his respect for established court precedents—including Roe v. Wade, the 1973 ruling that legalized abortion. He said again that he believes in a right of privacy—the legal foundation for Roe v. Wade—that is grounded in the Constitution's guarantee of liberty, and said he believes it requires broad interpretation by judges. That's a position rejected by conservatives eager to overturn Roe.

But Roberts refused to say exactly where the boundaries of a right to privacy are, and he refused to say that his position on the question would differ from that of Justice Clarence Thomas, perhaps the most orthodox conservative on the court and an opponent of Roe v. Wade.

Roberts also told senators that he is committed to civil rights, and sees no constitutional basis on which to question laws such as the Voting Rights Act. And he shared his views on the limits of presidential power and the central role that legislatures—rather than courts—should play in resolving controversies over issues such as property seizures by local governments.

However, Senate Democrats complained aggressively that Roberts was dodging questions and not giving substantive answers about what kind of judge he would be. They said he has been less forthcoming than previous court nominees before the Judiciary Committee, which he contested.

Democrats pressed him to commit to more specific stands: Does he believe the right of privacy ensures a woman's right to abortion? When would he vote to overturn precedent? Under what circumstances does presidential power go too far?

Roberts said emphatically that such a level of candor would be inappropriate for someone who soon might address such questions from the bench of the Supreme Court.

"I believe every one of the justices has been vigilant to safeguard against turning this into a bargaining process," he said of the Senate confirmation process.

"It is not a process under which senators get to say, `I want you to rule this way, this way and this way, and if you tell me you'll rule this way, this way and this way, I'll vote for you.' Judges are not politicians. They cannot promise to do certain things in exchange for votes," Roberts said.

The contrast between Roberts' even-toned testimony and the chilly Democratic response took center stage. At times, the exchanges got testy; at others, they took on compelling emotional dimensions, as when Sen. Dianne Feinstein, D-Calif., asked Roberts to tell her "as a man" how he would approach an end-of-life decision for a loved one.

Roberts acknowledged that it would be a difficult decision, and one he agreed that he would not want the government to decide "as a general proposition."

In an exchange with Sen. Charles Schumer, D-N.Y., the dispute briefly turned comical.

"It's as if I asked you what kind of movies you liked, and you say `I like movies with good acting, I like movies with good cinematography,'" Schumer said. "I ask if you like `Casablanca,' and you say `Lots of people like `Casablanca.'"

Roberts, before giving a more serious response, deadpanned: "`Dr. Zhivago' and `North by Northwest.'"

Schumer told Roberts he wanted him to be more forthcoming, and asked what the harm would be in sharing his views. Roberts said again that he was unwilling to go further.

Sen. Dick Durbin, D-Ill., focused on the wide range of Hispanic groups that are opposing Roberts' nomination. He challenged Roberts to demonstrate that he had compassion for the disadvantaged, pointing to a memo Roberts once wrote that cast doubt on a high court ruling that mandated public education for the children of undocumented aliens.

In a statement that could sum up Roberts' entire two-day testimony, the nominee told Durbin that he was looking for the wrong kind of answers.

"Senator, I don't think you want judges who will decide cases before them under the law on what they think is good—simply good policy for America," Roberts said.

"There are legal questions there. There is a unifying theme in my approach both as a lawyer and as a judge, and that is the cause that I believe in passionately, the one to which I have devoted my professional career, is the vindication of the rule of law. You need to have courts that will enforce the rule of law if you're going to have rights that mean anything."

Roberts offered little new information Wednesday, as senators' questions echoed Tuesday's, but he did flesh out several positions he had taken earlier.

Sen. Sam Brownback, R-Kan., quizzed Roberts about a controversial high court ruling in June that permitted local governments to seize private property and give it to other private interests to develop for urban-renewal projects.

Brownback opposed the ruling, saying: "Isn't it now the case that it's much easier for one man's home to become another man's castle?"

Roberts emphasized the court's restraint in the ruling.

"The court was not saying you have to exercise this power," Roberts said. "What the court was saying is, there is this power, and then it's up to the legislature to determine whether it wants that to be available."

Roberts said he disagreed with justices who cite foreign law in their opinions, but told Sen. Tom Coburn, R-Okla., that he didn't think those justices were violating their oath of office. As chief justice, he said, he would try to persuade them not to do it.

"I would think they're not getting it right with that particular approach and would hope to be able to sit down and argue ... as I suspect they'd like to sit down and debate with me," Roberts said. "But I wouldn't suggest they're not operating in good faith."

Speaking to committee Chairman Arlen Specter, R-Pa., Roberts conceded that a recent trend of 5-4 decisions with multiple individual concurring opinions, "undermines the importance of providing guidance" to lower courts.

"As a lower court judge, I appreciate clear guidance from the Supreme Court," he said. "I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed."

Roberts also hinted at dissatisfaction with the court's current workload of about 80 cases per term.

"Just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases," Roberts said.

Several Democrats sparred with Roberts over his commitment to civil rights, pushing him to clarify—or step away from—statements he made in Reagan-era memos, such as spelling out reasons to object to expanding the Voting Rights Act.

In a 20-minute exchange with Sen. Edward Kennedy, D-Mass., Roberts said he no longer believed that a provision that expanded the law was "constitutionally suspect."

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(Knight Ridder correspondent Banks Albach contributed to this report.)

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(c) 2005, Knight Ridder/Tribune Information Services.

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