Roberts, Pressed on Abortion, Cites Respect for Settled Law
By DAVID STOUT
WASHINGTON, Sept. 13 - Judge John G. Roberts Jr. testified today, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue.
Senator Arlen Specter, the chairman of the Senate Judiciary Committee, immediately questioned Judge Roberts about the 1973 Supreme Court decision that upheld the right of a woman to choose abortion and the 1992 decision that reaffirmed it.
Soon afterward during the second day of confirmation hearings, the questioning began to range far and wide, touching on the separation of government powers, the history of the civil rights movement and the right to privacy, a right that Judge Roberts said is indeed embodied in the Constitution.
Mr. Specter, a Pennsylvania Republican, wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."
"I agree with that, senator, yes," said Judge Roberts, who is President Bush's nominee to be chief justice of the United States.
The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, questioned the nominee aggressively on his beliefs about the separation of powers within government in the context of a president waging war without explicit authorization of Congress.
"I believe very strongly in the separation of powers," Judge Roberts said.
Mr. Specter, who supports the right to abortion, had been expected to question the nominee aggressively on the issue, and he did. And while Judge Roberts did not wholeheartedly embrace the 1973 Roe v. Wade decision or the 1992 Planned Parenthood v. Casey decision, he did signal that he would at least have to think long and hard before moving to upset them. He cited the principle of "stare decisis," a Latin term meaning to stand by the thing decided, in stating that the Roe ruling was "settled as a precedent of the court."
"So as of '92, you have a reaffirmation of the central holding in Roe," Judge Roberts recalled as Mr. Specter began the questioning. "That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."
The nominee gave cautious answers, citing the difficulty of giving specific answers to hypothetical questions. But as a general principle, he said, he believes in "the importance of settled expectations," that ordinary citizens as well as lawyers should be able to rely on the predictability and stability of settled law.
But not always. Although overturning precedent can be "a jolt to the legal system," he said, it is sometimes right and necessary. He cited the landmark Brown v. Board of Education ruling of 1954, which outlawed public school segregation and in so doing overturned the Plessy v. Ferguson decision of the 19th Century that had upheld "separate but equal" facilities.
Although a Republican, Mr. Specter showed no sign of wanting to give Judge Roberts a free pass. The judge, now on the United States Court of Appeals for the District of Columbia Circuit, would succeed the late Chief Justice William H. Rehnquist if confirmed by the Senate.
Mr. Specter questioned the nominee about a memorandum he wrote in 1981, while a lawyer in the Reagan administration, in which he referred to the "so-called right to privacy."
The senator wanted to know if the wording indicated that Judge Roberts was lukewarm to the concept of a right to privacy, or if in fact he believed that privacy was a right embodied in the Constitution.
"Senator, I do," the judge replied. He said that right was spelled out in the First and Fourth Amendments, protecting free speech and freedom from unreasonable searches, as well as the lesser-known Third Amendment, protecting homeowners against having soldiers quartered in their homes against their will.
Senator Leahy pressed the nominee on how much power he thought a president had to wage war, even if undeclared, and whether he thought a president could authorize the use of torture - an obvious reference to mistreatment of some people detained after American military operations in Iraq and Afghanistan, and the controversy over whether administration officials at least tacitly approved the mistreatment.
"Does Congress have the power to stop a war?" Mr. Leahy asked.
"Congress has the power of the purse," the judge replied.
The senator conceded that point but added, "Wars sometimes keep going."
As for whether a president could "authorize" unlawful torture, Judge Roberts said, "I believe that no one is above the law."
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