WASHINGTON – Supreme Court nominee John Roberts nimbly parried questions on the emotionally charged issue of abortion Tuesday. He told senators the landmark Roe v. Wade decision was “settled as a precedent” while also leaving himself potential avenues for voting to overturn it.

Abortion questions kicked off the second day of Roberts’ confirmation hearings. They led to lively and contentious clashes as Democrats pressed the nominee – and Roberts pressed back – on a raft of issues from civil rights to sex discrimination to the power of the president.

The daylong showdown became particularly passionate when Roberts ducked a series of questions posed by Sen. Joseph Biden, D-Del., a potential presidential contender, on abortion and other hot-button issues.

Biden at one point accused Roberts of “filibustering,” as the committee’s chairman, Sen. Arlen Specter, R-Pa., intervened and urged Biden to let Roberts respond without interruption.

“Go ahead and continue not to answer,” Biden said to Roberts.

In the hot seat for nearly 12 hours, Roberts remained relatively unruffled, smiling, nodding and managing to appear responsive even as he mostly avoided detailed answers. At least once, he quoted Justice Ruth Bader Ginsburg’s statement, when she went before the committee, that she would give “no hints, no forecasts, no previews” about her approach toward specific cases that might come before the court.

Although the day’s sharpest exchanges were with the committee’s eight Democrats, it was the Republican Specter who first squared off with Roberts. An abortion-rights supporter, Specter opened Tuesday’s grilling by pressing the nominee to explain how much deference he would give to Roe v. Wade, the 1973 decision that legalized abortion.

Roberts answered Specter’s questions, but without committing himself to upholding or striking down the decision.

In memos and legal briefs from his service in the administrations of Presidents Ronald Reagan and the first George Bush, Roberts had expressed deep skepticism about Roe and its legal underpinning, a right to privacy.

On Tuesday, Roberts said those memos, many of which date to the early 1980s, represented the views of the officials he worked for, not necessarily his own – a theme he repeated in response to questions about his writings on civil rights and other issues.

Roberts said he did believe the Constitution afforded a right to privacy, a crucial question for many Democrats. He also expressed great deference for upholding long-established court rulings such as Roe, saying “it is a jolt to the legal system when you overrule a precedent” and that the public rightly expects “stability” and “predictability” from the court.

At the same time, Roberts said there were times when the justices had to upend precedents.

“It is not enough that you may think a prior decision is wrongly decided,” Roberts said in explaining his criteria for overturning precedent. Justices have to consider whether the initial decision was still “workable” and whether it had been “eroded” in any way, he said.

As an example, Roberts cited Brown v. Board of Education, the landmark 1954 ruling outlawing segregated schools and overturning the earlier “separate but equal” decision in Plessy v. Ferguson.

When Specter pressed Roberts to say whether Roe had been eroded or was unworkable, Roberts declined to answer. He took the same tack again and again when pressed later in the day by Democrats on abortion and other topics.

“I should stay away from a discussion of specific cases,” he said to Specter, citing other judicial nominees’ refusals to answer questions that might come before them on the court.

Sen. Edward Kennedy, D-Mass., sharply criticized the nominee on civil rights. He focused on memos Roberts wrote in the early 1980s that argued for narrow approaches to voting rights and sex discrimination.

“I’m deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings,” Kennedy said. “It appears you did not fully appreciate the problem of discrimination in our society.”

Roberts adamantly defended himself. With regard to memos he wrote arguing against an expansion of voting rights legislation in 1982, he said, “This was 23 years ago. I was a staff lawyer in the Justice Department. It was the position of the Reagan administration.”

Sen. Dianne Feinstein, D-Calif., asked Roberts about a series of statements he made in the 1980s about women’s rights, including one memo in which Roberts denigrated a proposed solution to closing the gender pay gap and another in which he questioned whether “encouraging homemakers to become lawyers contributes to the common good.”

“Did you really think that way and do you think that way today?” Feinstein asked.

Of the homemaker comment, Roberts said he was making a joke that the country didn’t need any more lawyers. “It’s totally inconsistent and rebutted by my life,” he said. “I married a lawyer … I have a daughter for whom I will insist at every turn that she has equal citizenship rights.”


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