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A scant paper record of personal views

WASHINGTON -- Supreme Court nominee John G. Roberts Jr. has developed a reputation in the nation's capital as a respected intellectual with strong conservative credentials, but he has produced little record of his personal views on the most incendiary social issues that are settled by the nation's highest court.

Instead, most of the ''paper trail" left by Roberts throughout his career as an elite Washington lawyer has come on behalf of clients. Most notably, Roberts once argued that Roe v. Wade, the 1973 Supreme Court case that declared a constitutional right to an abortion, should be overturned -- but he did so on behalf of a conservative client, the administration of George H.W. Bush.

''Even being a government lawyer, you have to represent your client," said Carl Tobias, a law professor at the University of Richmond. ''So I think the question is, was it just a matter of doing that representation, or was it also something he believed in? In other words, how would he rule in a similar [abortion] case now? And we don't know the answer to that."

The looming debate over Roberts's nomination is likely to focus on how forthcoming he will be about his personal views, since nearly all the conservative legal positions he has articulated were on behalf of clients. Roberts has been a judge only since 2003, when he was confirmed to the US Court of Appeals for the District of Columbia Circuit without opposition in the Senate.

Senator Charles Schumer, from New York, was one of three Democrats on the Judiciary Committee to vote against Roberts for the court of appeals and said last night he must be more open this time. ''He didn't answer questions fully and openly when he appeared before the committee," Schumer said. ''For instance, when I asked him a question that others have answered, to identify three Supreme Court cases of which he was critical, he refused. But now it's a whole new ballgame. . . . I hope Judge Roberts, understanding how important this nomination is -- particularly when replacing a swing vote on the court -- will decide to answer questions about his views."

Since becoming a judge, Roberts has been involved in few notable decisions. One exception, however, demonstrated that Roberts is a follower of the ''federalist revolution," in which conservatives have sought in recent years to restrict the federal government and return policy-making power to the states. Retiring Justice Sandra Day O'Connor was a leader in this movement.

In 2003, Roberts joined in a dissent on the appeals court in a case involving a California company that had been blocked from developing an area where a rare species of toad lived. The dissent, citing recent Supreme Court cases striking down acts of Congress for having exceeded its authority, said the federal government lacked the power to protect endangered species.

Roberts is also a member of the Federalist Society, a fraternity of legal conservatives whose members often espouse the view that the Constitution should be interpreted literally and oppose ''activist" judicial decisions that find implicit but unwritten rights in the document -- including the unwritten right to privacy from which abortion rights are derived.

President Bush echoed their credo last night when he introduced Roberts as a judge who will not ''legislate from the bench." Groups across the spectrum have cited Roberts's Federalist Society membership to support their assertion that his views match those he crafted while working for the Reagan and Bush administrations.

As deputy solicitor general in the administration of George H.W. Bush, Roberts coauthored a Supreme Court brief arguing that Roe v. Wade was ''wrongly decided and should be overturned" because the court's conclusion in Roe ''that there is a fundamental right to abortion . . . finds no support in the text, structure, or history of the Constitution."

However, during his 2003 confirmation, Roberts said, ''Roe v. Wade is the settled law of the land. . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

As an administration advocate, Roberts also supported lowering the wall between church and state in two cases. The Supreme Court accepted his argument that religious groups have a right to meet on school grounds, but it rejected his argument that public high schools should be allowed to perform religious ceremonies at graduations.

Liberal activist groups such as the Alliance for Justice, People for the American Way, and the National Abortion Rights Action League have condemned Roberts's record because of these cases. But legal academics said yesterday that it will not be easy for them to use that record to bring Roberts down, because he wrote the arguments on behalf of someone else.

''He's not published a lot to be in the position of having said bold and flamboyant things in law review articles of the type that got [failed 1987 nominee Robert] Bork into trouble," said Richard Fallon of Harvard Law School. ''There's not much of a paper trail. But in that networked world, he's obviously someone who's trusted, so I expect he's a pretty solid conservative."

Moreover, as a Supreme Court appeals lawyer in private practice in the 1990's, Roberts -- who has argued before the court 39 times -- did not confine himself to working for conservative clients.

He also represented welfare recipients, an inmate who sued his prison over alleged mistreatment, Democratic officials in Hawaii who wanted to keep a state program whereby only native Hawaiians could vote for officials who administered the budget of the Office of Hawaiian Affairs, and a Nevada state agency that wanted to limit further property development around Lake Tahoe.

''I think it's very hard to say what his legal views are," said Dennis Hutchinson, associate dean of University of Chicago Law School. ''Everybody is going to be spinning it from both sides. But no one knows the Supreme Court better, of all the candidates. He was widely regarded as one of the best oral argument makers in the last decade on the court. He has impeccable academic credentials. He has a calm, judicial demeanor. He's going to be very tough to fight."

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