– Editor's note: This story updates one issued Sept. 13.
WASHINGTON (ABP) — Supreme Court nominee John Roberts, in three long days of questioning before a Senate panel Sept. 13-15, danced delicately around some of the most controversial legal questions of our time — among them abortion, gay rights and the proper relationship between church and state.
While refusing to tip his hand on how he might rule on such questions, he also said he would not let his Christian faith or the Bible influence his work as a judge. And he embraced some legal philosophies — on the right to privacy, church-state issues and the evolving nature of the Constitution — that may give some of his most conservative supporters pause.
Nonetheless, prominent conservatives remained firm in their support of President Bush's pick to become the 17th chief justice of the United States.
Roberts finished his hearings before the Senate Judiciary Committee Sept. 15, after a week full of extensive questioning from both Democrats and Republicans on the panel.
The committee's Republican chairman, Pennsylvania Sen. Arlen Specter, began the questioning Sept. 13 by launching directly into the abortion debate, asking Roberts if he agreed with the legal framework behind Roe vs. Wade. That landmark 1973 decision legalized abortion nationwide.
“Do you see any erosion of precedent as to Roe?” asked Specter, the only Republican member of the panel who supports abortion rights.
“I think I should stay away from discussion of particular issues that are likely to come before the court again,” Roberts said, in a formulation that would be echoed throughout the week. “In the area of abortion, there are other cases on the court's docket, of course.”
Roberts — like previous Supreme Court nominees — repeatedly refused to answer questions in a way that would hint how he would rule on certain issues in the future.
But he expressed support for the legal principle of stare decisis — Latin for “let the decision stand” — that says Supreme Court precedents on issues should generally be upheld.
During his 2002 confirmation hearings for his current position as a judge on the District of Columbia Circuit Court of Appeals, Roberts acknowledged that Roe was “settled law.” However, his opponents have noted that, as a Supreme Court justice, Roberts would have much more leeway to overturn one of his own court's precedents.
In response to Specter's question about a 1992 Supreme Court decision that upheld the thrust of Roe, Roberts said deference to precedent is important for the high court — but also dependent on many factors.
“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent takes an important role,” he said. To overrule it, he said, “it is not enough that you think a previous decision was wrongly decided.”
In a later exchange on abortion cases with Sen. Dianne Feinstein (D-Calif.), Roberts said that “settled expectations” are a factor in determining whether it is wise to overturn a precedent. “People expect that the law is going to be what the court has told them the law was going to be.”
Roberts also expressed support for some of the legal underpinnings of the Roe decision. Specifically, he said he supports a right to privacy about contraceptive decisions — an opinion many religious conservatives find suspect. “I do believe the right to privacy is protected under the Constitution in various ways,” he said.
Specifically, he said he supports the court's reasoning in the 1965 Griswold vs. Connecticut decision that said states cannot ban contraception, because doing so would interfere with the privacy rights of married couples. In deciding Roe eight years later, the court relied heavily on Griswold's finding of such privacy rights.
Roberts also discussed his Catholic faith and how it might affect his rulings on issues for which the Roman Catholic Church has clear teachings — such as abortion and end-of-life issues.
Roberts was asked twice about John F. Kennedy's famous 1960 presidential campaign speech to a group of Protestant ministers in Houston. Addressing his then-controversial Catholic faith, Kennedy said, “I do not speak for my church on public maters, and the church does not speak for me.”
In response to a question from Specter, Roberts said he agreed with Kennedy's formulation, and added that there is “nothing in my personal views, based on faith or other sources, that would keep me from upholding” Roe vs. Wade.
Later, in responding to a similar question from Feinstein, Roberts said, “My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I do not look to the Bible or any other religious source.”
However, he also declined to support Kennedy's statements in the same 1960 speech supporting an “absolute separation” between church and state.
“I don't know what you mean by 'absolute separation of church and state,'” Roberts told Feinstein, noting that while he supports both religion clauses of the First Amendment, the definition of “separation of church and state” is still unsettled as a matter of constitutional law.
Later Sept. 13, Sen. Dick Durbin (D-Ill.) questioned Roberts more extensively on his beliefs about church-state issues.
Durbin asked Roberts his thoughts about a test the high court has used to determine whether a government action violates the Constitution's ban on government establishment of religion. In response, the judge launched into an extensive explanation of his view of the First Amendment's twin religion clauses — the establishment clause and free-exercise clause.
“I think the animating principle of the framers — that's reflected in both of the religion clauses — is that no one should be denied the rights of full citizenship because of their religious belief or their lack of religious belief,” Roberts said.
But, in a Sept. 14 response to queries from Sen. Jeff Sessions (R-Ala.) about a Pledge of Allegiance case that had been rendered that day, Roberts said there are difficulties with some of the court's past decisions on church-state cases.
“I think everyone would agree that the religion jurisprudence under the First Amendment — the establishment clause and the free-exercise clause — could be clearer,” he said. He pointed out two very recent decisions on government displays of the Ten Commandments, in which the court ruled a display on the Texas Capitol grounds is acceptable but that displays in two Kentucky courthouses were unconstitutional.
“That is an area in which the court can redouble its efforts to come to some consistency in its approach,” Roberts said.
The nominee also embraced a view of the First Amendment's religion protections that differs slightly from that espoused by some conservative Christian scholars.
Durbin asked him, “is it your belief that what we are trying to establish in the constitutional protection on the exercise of religion is not only to protect minorities, religious minorities, but also nonbelievers?”
Roberts replied: “The court's decisions in that area are quite clear. And I think the framers' intent was as well; that it was not their intent just to have a protection for denominational discrimination [among Christian or Judeo-Christian groups]. It was their intent to leave this as an area of privacy apart — a conscience on which the government would not intrude.”
Conservatives seemed to continue to back Roberts.
Jay Sekulow, chief counsel for the American Center for Law and Justice, told reporters after the questioning concluded Sept. 15 that nothing Roberts said about the right to privacy gave him pause.
“That didn't alarm me. And his view on Griswold vs. Connecticut doesn't bother me at all,” Sekulow said. He pointed out the fact that another judge said similar things about the right to privacy in his confirmation hearings but has turned out to be much more suspect of the concept since he got on the high court.
“That's exactly what Clarence Thomas said,” Sekulow noted, mentioning one of the court's two most reliably conservative justices.
Sekulow's counterpart on the other end of the ideological spectrum agreed. Ralph Neas, president of People for the American Way, said Roberts had “been concealing his judicial philosophy for the past three days.”
Neas added, of Roberts' responses on opinions such as Griswold: “Many times he used the same phrase Clarence Thomas used in 1991 — 'I have no quarrel with that decision.'”