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Roberts throws a curve

WASHINGTON ''WELCOME to 'Night Court,' " said a smiling Democratic Senator Richard Durbin to a deadpan John Roberts as the confirmation hearings for the country's 17th chief justice droned into their 12th hour. It was late, but before the evening session was over there was one more instructive lesson into the nominee's distinguished past that ended up undercutting the Democrats' efforts to use inference instead of evidence to suggest that Roberts is an agenda-driven right-winger.

President Bush may have made no bones about his admiration for Justices Antonin Scalia and Clarence Thomas, offering them as his models for the Supreme Court. But in nominating Roberts, and off his diligent performance in the confirmation process, Bush has ended up disquieting his conservative supporters more than antagonizing progressives. The guy is coming off like a judge who happens to be conservative as opposed to a conservative judge.

The exchange with Senator Durbin of Illinois was over one of the most shameful episodes of the Ronald Reagan era, when there was an attempt to chip at the foundations of civil rights law. Early in Reagan's first term, in a move that deeply split the young administration, there was an effort to allow tax deductions for tuition paid to private schools that were flagrantly racist. None was more so than Bob Jones University -- which at the time forbade black and white students from socializing. Had the effort succeeded, segregation could have received a huge economic boost via the back door.

Reagan's move was blocked in a Supreme Court decision more than 20 years ago. Eight justices on a conservative court opposed. The lone dissenter, however, was William Rehnquist, for whom Roberts had just finished clerking. Moreover, Roberts moved on to Reagan's Justice Department and then his White House counsel's office. While he played no active role in the case, the young lawyer did write at least two of his famous memos on the subject in 1982 and 1983.

What Durbin pressed him on was the fundamental questions relevant to today: ''Which side were you on?" After a little fencing, Roberts said the Reagan administration was wrong in its attempt to help the likes of Bob Jones University. End of subject, end of suspicion, and once again Roberts had commented on a Supreme Court case from the recent past.

If there has been a surprise thus far it has been his relatively forthcoming stance in talking about past high court decisions while avoiding subjects that are likely to be up for decision. He has been essentially like other recent nominees.

Not only did Roberts discuss the Bob Jones mess, he went all the way back to the country's beginning and gave a ringing affirmation of John Marshall's judgment (in Marbury v. Madison) that it is the Supreme Court that tells the other branches what the law is and what the Constitution means.

In between, he agreed to discuss not only the court's pre- and post-Civil War disgrace in race relations -- Dred Scott and Plessy v. Ferguson. He also endorsed a limit on wartime presidential power (to seize steel mills to stop a strike during the Korean War) and condemned another, the court's support of the mass internment of Japanese-Americans during World War II. Roberts also criticized as a classic example of judicial activism the rejection of progressive economic legislation starting a century ago on specious policy grounds that amounted to backdoor legislating. He joined recent nominees in declaring that he finds a right to privacy in the Constitution and in 80 years of precedents. And for good measure, he accepted the constitutional legitimacy of the basic civil rights legislation of the 1960s -- the acts of 1964, '65, and '68.

To no one's surprise, he would not state a view on abortion rights, much less Roe v. Wade. Nonetheless, he commented via a discussion of court precedent which, unlike Clarence Thomas, he thinks deserves great respect in the interests of stability and the law. He added that not only does he view Roe as a precedent but he sees as equally deserving of respect the follow-on decision of 13 years ago that reaffirmed the basic right even as it chipped away at its foundation.

At the beginning of the process, Senator Dianne Feinstein spoke for many Democrats when she said she could not support a nominee who she knew would vote to overturn Roe. At this point in the process, there is no factual basis for knowing that.

This leaves the dilemma of how to vote. One model might be the committee's ranking Republican, Orrin Hatch of Utah. A prolife conservative who has a history of working with Democrats on some issues, Hatch voted for President Clinton's choices -- Stephen Breyer and Ruth Bader Ginsberg -- suspecting with good reason that he would disagree with virtually all their decisions but knowing that they were of first-rate judicial temperament and qualifications.

It is fine to wish John Kerry had won last year's election and could have made the choice Bush made. It is fine to note that Roberts shows more head than heart. But a strong evidentiary peg on which to hang a ''no" vote has not been found as yet.

Thomas Oliphant's e-mail address is

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