Democrats may be facing last chance to grill Roberts

A second and possibly final day of questioning Wednesday gives Democrats another shot at probing Roberts’ mind before voting on his candidacy to become the nation’s youngest chief justice in more than 200 years.

The first day of committee hearings on Roberts’ nomination did not shed light on many issues that Democrats wanted answered.

“Some answers have raised other questions,” Sen. Patrick Leahy of Vermont, the committee’s senior Democrat, wrote in his weblog. “In some ways, it seems the more he’s asked and the more he answers, the less clearly the real John Roberts is in focus.”

Despite the Democratic frustration, it appeared Roberts had done nothing to diminish his strong chances for confirmation to replace the late William H. Rehnquist before the high court convenes Oct. 3.

Democrats — who argued with Roberts a couple of times Tuesday but mostly moved on after he refused to answer their questions — are just wasting their time trying to make Roberts commit himself to positions on divisive court cases, said Sen. Orrin Hatch, R-Utah.

“I think they’re coming to the realization that there’s no way they’re going to make any headway,” Hatch said.

Roberts sat calmly in the center seat in the Hart Senate Office Building’s main hearing room, not even consulting notes as he answered question after question from 16 of the 18 senators in a marathon session spread across 10 hours.

He did spar briefly with two Democrats, Edward Kennedy of Massachusetts and Joseph Biden of Delaware, when they tried to pin him down.

Roberts struck sparks with Biden when he indicated his refusal to answer certain questions was based in part on a precedent of “no hints, no forecasts, no previews” that Justice Ruth Bader Ginsburg set at her confirmation hearing a dozen years ago.

“That is not true, judge,” interrupted Biden, who later accused Roberts of filibustering.

Roberts also rebuffed Kennedy’s attempts to draw him into a discussion of his views on lawsuits under the Voting Rights Act — whether a showing of discrimination should be sufficient to prevail, as opposed to a more difficult-to-establish intent to discriminate.

Specter had to jump in both times to stop the senators from interrupting Roberts’ statements, urging Kennedy twice, “Let him finish his answer.”

Roberts flashed his wit occasionally, announcing with a smile that he had reconsidered his long-ago support for term limits for judges. If confirmed, his appointment would be for life.

President Bush originally named Roberts to replace Justice Sandra Day O’Connor when she announced her retirement earlier this summer. He became the chief justice nominee after Rehnquist’s death.

Roberts refused to let Republicans label him as another Rehnquist, or as an originalist, a constructionist, a perfectionist or any of the oft-repeated legal definitions that analysts and activists apply to Supreme Court justices.

“I will be my own man,” he said.

But supporters and critics agreed that he is a young conservative with the potential to move the court to the right.

Roberts’ answers on abortion, however, could worry both sides in the debate.

He called Roe v. Wade “settled law” and said the 1992 Planned Parenthood v. Casey ruling that reaffirmed the right to abortion was “precedent of the court entitled to respect.” He declared there is an unwritten right to privacy in the Constitution and said he supported the 1965 Supreme Court ruling in Griswold v. Connecticut establishing the right of privacy on the sale and use of contraceptives.

“We’re concerned about those statements,” said Troy Newman, head of the anti-abortion Operation Rescue.

But abortion rights groups noted that Roberts never said he would uphold Roe if it comes before the court, or that privacy rights were linked to abortion rights. And while Roberts said previous court decisions should be respected, none of them are immune to being overturned.

“In the end, he refused to commit to upholding the core principles of Roe,” said Debra Ness, head of the National Partnership for Women and Families.

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