The nominee for chief justice won't upset the Supreme Court's balance, the senator argues, because he will replace another conservative.

01:00 AM EDT on Wednesday, September 21, 2005

BY JOHN E. MULLIGAN
Journal Washington Bureau

WASHINGTON -- Republican Sen. Lincoln D. Chafee said yesterday that he will vote to confirm federal appellate Judge John G. Roberts Jr. as chief justice of the Supreme Court, despite his concern that Roberts may seek to restrict abortion rights.

Even if he proves to be a staunch conservative, Chafee reasoned, Roberts would not disturb the court's narrow majority in favor of abortion rights or move the court to the right on other key issues because he would be replacing another staunch conservative -- the late Chief Justice William H. Rehnquist.

Besides, Chafee asserted, Roberts has given encouraging signals that he will respect the judicial precedents in favor of legal abortion and other positions that Chafee favors.

"We were all bowled over by the depth of his intellect and his accomplishments," Chafee added of Roberts.

Democratic Sen. Jack Reed, meanwhile, said he has not yet decided how he will vote on Roberts. Reed said Roberts has demonstrated "a respect and a reverence for the law," which gives him an advantage over a nominee of "uncritical beliefs" that aren't rooted in "any kind of system of logic and thought."

But Reed said that Roberts' refusal to declare himself on a number of key issues, while understandable, makes it harder for senators to judge him "on a whole set of issues regarding privacy," besides abortion. He cited, for example, legal questions about the propriety of emerging medical treatments based on DNA.

The candidates for Chafee's seat in next year's election split along party lines when surveyed on the Roberts nomination. Secretary of State Matt Brown and former Attorney General Sheldon Whitehouse, both Democrats, said they oppose the nomination principally because Roberts did not make clear during his confirmation hearings that he supports abortion rights.

Cranston Mayor Stephen P. Laffey, a Republican, issued a printed statement in support of "this mainstream nominee," as he called Roberts. Laffey declined to answer questions about his position.

Chafee acknowledged that his decision on Roberts would be much tougher if the Senate were still weighing him as successor to the retiring Justice Sandra Day O'Connor.

"Fortunately, I don't have to embrace that scenario," said Chafee, an abortion-rights supporter who will seek reelection next year as one of the Senate's most liberal Republicans. One of Chafee's key early endorsements has come from a national abortion-rights group that opposes Roberts' confirmation.

Initially, President Bush nominated Roberts this summer to replace O'Connor -- "a critical swing vote," in Chafee's words, in a series of narrowly-decided cases that pitted the court's conservative and liberal wings on abortion and other issues.

But after Rehnquist's death, Mr. Bush renominated Roberts as chief justice. The Senate Judiciary Committee, which last week completed hearings on the nomination, plans to vote tomorrow on his confirmation. A vote by the Republican-majority Senate will follow.

Chafee noted that crucial elements of a woman's right to abortion have been affirmed in a series of 5-to-4 votes in the high court. "O'Connor was one of the five and Rehnquist was one of the four," he said, reasoning that a conservative replacement for the conservative Rehnquist would not change the result in similar cases.

Chafee said he has told Republican Senate leaders, including Sen. Elizabeth Dole, chairwoman of the GOP campaign committee that is helping his reelection campaign, that he will join them in support of Roberts. "My party says that's a smart move," Chafee said.

Some allies in the abortion-rights camp, he said, have told him "they understand" his position.

Whitehouse and Brown both hinged their judgments about Roberts on his refusal, during the confirmation hearings, to answer a number of questions intended to pin him down on abortion and other key issues.

Whitehouse acknowledged that past nominees have resisted taking clear stands on potential issues before the court. But he said Mr. Bush has "raised the bar" for confirmation of his nominee. Republicans have made clear their intention to push the court in a "radically conservative direction," Whitehouse said, so the burden is on Roberts to demonstrate that he would not do so -- on abortion rights, on federal regulatory powers and in other areas.

When he was asked why he did not accept Roberts' declaration that he is not an "ideologue," Whitehouse answered that any nominee could make that declaration. In this case, Roberts has the support of conservatives. "What do they know about him that we don't know?" asked Whitehouse.

Brown said that Roberts used a "double standard" during the hearings because he would not state a position on abortion-related issues but did declare his support for a landmark civil-rights case.

Brown said that if he becomes a senator he will insist on clear answers to all questions about key issues as a condition of his support for judicial nominees.