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Reading Roberts's mind

THE INSCRUTABLE charm of Judge John Roberts's smile reassures his supporters and alarms his critics, seeming to promise both groups that if he joins the Supreme Court, he will be a conservative's dream come true.

Today, members of the Senate Judiciary Committee must push past the charm, the politics, and the ad campaigns to test Roberts's mettle for becoming chief justice of the United States, replacing the late William Rehnquist.

Chief justice is a large job that includes supervising 2,000 federal judges and the setting of federal court policy. If Roberts is to have this much influence, the senators must press him for candid answers.

America cannot tolerate a justice who drags the country backward, hacking away at rights to privacy or Congress's ability to protect health, workers, and civil rights.

The paper trail so far on Roberts is discouraging. A 1982 memo includes a reasonable recommendation to seek more women judges for lower federal courts, but a misguided call to abolish the Legal Services Corporation, created by Congress and President Nixon in 1974 to provide free legal help to poor people.

But the papers mostly show a lawyer defending someone else's interests. The Senate's challenge is to discern who Roberts would be if he were serving the national interest: whether he could shed his political street clothes, ignore the distraction of overheated public debate, and focus on the court's intellectual demands.

Carol Steiker, a professor at Harvard Law School, suggests that senators ask Roberts why he chose to work for the Reagan and first Bush administrations, and how this work shaped his judicial philosophy.

Because the law cannot be welded to the times of Jefferson and Washington, Roberts should understand that taking an originalist view of the Constitution would be doing less than half the job in today's high-tech, global economy -- a complex, nuanced place that the Founding Fathers never imagined.

The Supreme Court is a crucible. It can be an education in the virtues of prudence and flexibility, one that appears to have had a moderating effect on many justices, including Sandra Day O'Connor and David Souter. The Senate will consider whether Roberts is likely to learn from these examples, and whether he would build wisely on his intimate knowledge of the high court, earned as a clerk for Rehnquist and later as a lawyer who has argued cases before the court.

As crucial as these matters are, the Senate will need to go beyond judging Roberts's comments on controversial issues such as abortion and the scope of presidential powers during war. Before they vote, the senators should ask themselves if this nominee is likely to be a visionary or a functionary.

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