WASHINGTON – Democrats plan to use confirmation hearings to question John Roberts (search) about his pledge to follow established legal rulings, saying his record as a government lawyer creates doubts about his commitment to privacy rights, particularly abortion.
Roberts' response to a Senate Judiciary Committee questionnaire about "judicial activism" provides some hope but "also raises many questions," said New York Sen. Charles E. Schumer (search), one of eight Democrats on the committee, which will begin considering Roberts' nomination on Sept. 6.
"That's why the hearings will be so crucial to determining whether Judge Roberts will rule from the bench in a careful and non-ideological way, or will instead choose to make law or impose his will," he said.
As Roberts continued his round of private meetings with lawmakers Wednesday, Senate staff and special interest groups were combing the federal judge's 84-page response to the questionnaire, which was released late Tuesday.
At the heart of the debate are Roberts' views on "judicial activism," a criticism levied by congressional Republicans when they believe judges go too far in deciding social issues rather than leaving those choices to elected legislatures.
After meeting with Roberts Wednesday, Sen. George Allen, R-Va., said he was pleased by Roberts' view that judges should interpret the law, not make law. Allen said they did not discuss abortion.
Some Senate Democrats have also cautioned against "judicial activism," although their definition refers to judges who would ignore legal precedent and overturn more liberal Supreme Court decisions in the 1960s and 1970s, such as the Roe v. Wade (search) abortion ruling.
In his response, Roberts reaffirmed that precedent plays an "important role in promoting the stability of the legal system." He also said judges "do not have a commission to solve society's problems."
In a conference call with reporters Wednesday, lawyers for Democrats on the Judiciary Committee said the response raises fresh questions, given recently released documents they say show a hostility toward civil rights.
They point in particular to a Dec. 11, 1981, memo, released Tuesday by the National Archives, that Roberts wrote as a 26-year-old special assistant to Attorney General William French Smith.
In that memo, Roberts summarizes a speech by former Harvard law dean Erwin Griswold, explaining it is consistent with Smith's "policymaking themes." Griswold "devotes a section to the so-called 'right to privacy,' arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticizes Roe v. Wade," Roberts wrote.
"You were quite right that I would find a 'measure of resonance' in your lecture," Roberts later wrote in draft of a letter to Griswold signed by Smith.
Other memos, Democrats say, show he is skeptical of the judiciary's role in fully protecting individuals' "fundamental rights."
"We're convinced there's a lot of questions that needs to be asked," said a Democratic counsel for the Judiciary Committee, whose eight Democrats are seeking access to thousands more documents from when Roberts served as a top deputy in the solicitor general's office from 1989-93.
Tasia Scolinos, a spokeswoman for the Justice Department, said Roberts' recently released memos reflected the official position of the Reagan administration, not his personal views.
"Nowhere in the memo did John Roberts — at the time a young attorney at the Justice Department — express his personal views on the right to privacy. He simply summarized a law review article written by Dean Erwin Griswold," she said.
But several liberal interest groups said Wednesday that the material raised questions.
"We are gravely concerned this new information could indicate John Roberts holds a hostile position on the fundamental right to privacy," said Karen Pearl, interim president of the Planned Parenthood Federation of America, which supports abortion rights.
"Would John Roberts go so far as to deny the vast majority of American women the right to make their own childbearing decisions? It is the Senate's duty to the American people to find out," she said.