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A principled conservative

NARAL Pro-Choice America and have already succumbed to the lure of partisan bombast, but as Democrats size up John G. Roberts Jr., they should ask themselves this question: What's reasonable to expect of a Supreme Court nominee from a conservative president?

Some Democrats think it's realistic to demand that Roberts either endorse their views or detail his on matters dear to them. Senator Charles Schumer, a member of the Senate Judiciary Committee, is warning that the nominee will have to get specific -- and noting, portentously, that he voted against confirming Roberts to the US Court of Appeals because Roberts declined his request to list three Supreme Court decisions he disagreed with. (Zounds! Did Roberts also refuse to say what his biggest weakness was? Or what animal he'd be if he were one, and why?)

Senator John Kerry, who during his own presidential campaign said that he would impose an abortion rights litmus test, seems to think Bush's choice should meet his test.

''The Senate must learn whether he has a clear, consistent commitment to upholding constitutional standards like civil rights, the right to privacy, and Roe v. Wade," Kerry e-mailed his supporters on Wednesday.

With Supreme Court nominees, all roads tend to lead to Roe and Planned Parenthood v. Casey, the cases that established and reaffirmed abortion rights. Roberts's record certainly leaves a great deal of ambiguity about where he is on abortion, and it's undeniably part of the Senate's job to probe his judicial philosophy. Still, it's also all but preordained that Roberts won't answer with the clarity Democrats desire.

Consider: It's not remotely realistic to expect a prolife president to nominate an aspiring justice who would declare himself firmly in support of Roe. It's only slightly less likely that such a nominee would say he sees no privacy right in the Constitution or that he would vote to overturn Roe.

A much more probable response is that he won't prejudge the issue or that he doesn't deem it proper to say where he is, or might be, on matters that may soon be before the court.

That won't prove satisfying for those who support abortion rights. And yet, it's probably the best answer Democrats can realistically hope for.

It's worth recalling that that's just the sort of response Sandra Day O'Connor gave during her 1981 confirmation hearing. She told senators that she personally opposed abortion -- indeed, that she had an ''abhorrence" of it -- but declined to say how she would rule if the issue came before the court.

In his 1987 hearing, Anthony Kennedy also refused to specify how he would come down, asserting that a judge should ''approach the subject with an open mind," hear both sides, look at the facts, research the law, and ''listen to his or her colleagues" before deciding.

In his 1990 hearing, David Souter wouldn't even discuss his thoughts about the court's 1965 Griswold v. Connecticut contraception decision for fear it might lead to questions about how he felt about Roe.

O'Connor, Kennedy, and Souter all became part of the court's abortion-rights majority -- and there's a lesson there. As Boston attorney Harvey Silverglate notes, thoughtful, principled conservatives often conclude that established precedents must be given tremendous weight regardless of how they themselves would have decided the original case. (Indeed, the doctrine of ''stare decisis," or ''let the decision stand," is at the core of the court's reaffirmation of Roe in Planned Parenthood v. Casey.)

Certainly Roberts is not another Antonin Scalia, an ideologue dismissive of precedent that affronts his originalist philosophy and a man who revels in reading aloud his own caustic opinions rebuking his colleagues.

Noting that it's exceedingly difficult to predict how a justice's views will evolve over time, David Garrow, Emory University's well-known Supreme Court historian, speculates that Roberts could fall anywhere on the spectrum from Souter to William Rehnquist but sees him as a jurist who would give precedent a healthy respect. ''There is not a scintilla of evidence in his background . . . that he could turn out to be a Scalia" or a Clarence Thomas, Garrow says.

''We all knew that Bush was not going to nominate a liberal," says Silverglate. ''The question is, what kind of person can both conservatives and liberals live with? The answer is, a principled conservative."

And at least at this early stage in the process, the man Bush has chosen seems to be just that.

Scot Lehigh's e-mail address is

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