WASHINGTON -Supreme Court nominee John G. Roberts Jr.'stestimony about the existence of a right to privacy, the importanceof respecting precedent, and the need for the Constitution to adaptto changing conditions has alarmed some rank-and-file conservatives,who are filling up Internet message boards with predictions thatRoberts may turn out to be a moderate justice.
Many say they believe that Roberts's answers have shown him to beto the left of Justices Antonin Scalia and Clarence Thomas, whomPresident Bush promised to use as models in selecting new justices.Some compare Roberts to David Souter and Anthony Kennedy Republicanappointees who proved to be moderates who supported abortion rights.
One writer on the conservative FreeRepublic.org site wrote thatyesterday's questioning by Senator Joseph R. Biden Jr., Democrat ofDelaware, had "exposed Roberts" as a moderate.
"Biden gave Roberts every opportunity to even minimally associatehimself with Scalia and Thomas, and he ran away from them like he wasrunning from a burning building not a good sign," the post said.
Bush chose Roberts, a highly respected lawyer with a shortjudicial tenure, over conservative judges with longer track recordson issues of importance to conservatives. Still, almost allconservative judicial groups endorsed Roberts, recognizing that hislack of a long judicial record made him less susceptible to liberalattacks.
But the first three days of Roberts's confirmation hearings,during which the nominee has taken pains to portray himself as acautious moderate, sparked concerns among grass-roots conservativesthat Roberts may join a long line of Republican Supreme Courtappointees who proved to be more liberal on the bench than thepresidents who chose them.
Some leaders of groups involved in the well-organized conservativecoalition backing Roberts's confirmation conceded that they, too,have heard from some grass-roots members expressing concern about thenominee's testimony.
"There were a few fires . . . that had to be put out yesterday,"said Manuel Miranda, who leads a daily conference call forconservative group leaders around the country.
The chief complaints, Miranda said, were from antiabortionactivists. They were concerned by Roberts's comments Tuesdayacknowledging a constitutional right to privacy, the basis for 1973'sRoe v. Wade decision recognizing a right to an abortion, as well ashis commitment to respect legal precedents. In particular, a numberof conservatives expressed outrage after Roberts said he agreed withSupreme Court cases from the 1960s that struck down laws prohibitingcontraception, which paved the way for Roe v. Wade.
After his testimony, conservative message boards lighted up withincredulous responses especially after leaders of the Christianorganization Family Research Council put out a statement praisingRoberts's testimony and pronouncing themselves "pleased" that heresisted calls to say how he would rule if Roe came up again.
"Pleased???" one writer on ConfirmThem.com said. "My gawd, run,don't walk away from this nominee! It's like Charlie Brown having thefootball taken away by Lucy, the rank-and-file supporters of Bush andtrusting in his picks, are being fooled once again."
But some conservative leaders said they believe Roberts is givinglawyerly responses to get through the confirmation process and willultimately be conservative.
"Judge Roberts is saying what I think everybody would haveexpected him to say in these areas," said Leonard A. Leo, executivevice president of the conservative Federalist Society. "When hetalked about precedents, he said, of course, all decisions from thecourt are entitled to respect, and you do have to consider whether itwould jolt the legal system. But he also said sometimes you have tojolt the legal system."
Leo noted that Thomas also testified in confirmation hearings thathe agreed with the Supreme Court opinions striking down bans oncontraception. Yet once Thomas was on the court, he voted to overruleRoe v. Wade.
Other conservative leaders also expressed cautious optimism aboutRoberts. In an e-mail to followers, conservative leader Gary Bauersaid some of Roberts's answers were not pleasing, but expressed hopethat the nominee would be more conservative.
"The judge is following the script laid out for him by the WhiteHouse, so many of his answers today were less than satisfying," Bauerwrote. "But a careful reading of the transcript shows he committed tonothing once he is on the court. We are left with what we always had a hope and an expectation, based on the totality of his record, thatif confirmed he will be part of a new conservative majority."
Still, in response to reassurances from Miranda, Bauer, andothers, many rank-and-file conservatives accused the leaders of beingin denial.
Yesterday, one Internet writer said: "Such nonspecific praises aremeaningless. `Roberts is GREAT!' is not a response to the seriousconcerns that have been raised by conservatives about the nominee. .. . Roberts's testimony contradicts most of the prehearing argumentshis supporters used."
The writer contended that, in his testimony, Roberts had distancedhimself from some of the conservative views expressed in his memoswhile serving in the Reagan administration; said his devoutCatholicism would not influence his rulings; remarked that someprecedents should be respected even if they were decided wrongly; anddefended his role in a gay-rights case a decade ago.
Yesterday, message boards lighted up again after Roberts testifiedthat he believed the founding fathers intended the Constitution "toapply to changing conditions . . . down through the ages" suggestinghe disagrees with conservatives who maintain that the Constitutionshould not be reinterpreted based on changing times.
Message-board writers pounced on that statement, saying Robertshad positioned himself to the left of strict "originalists," such asThomas and Scalia.
But Richard Fallon, a professor at Harvard Law School whoidentifies himself as a liberal, said the rank-and-file conservativesmay be succumbing to paranoia.
"Even the purest originalists on the Supreme Court recognize thatthere are exceptions," Fallon said. "So when somebody like Robertssays there are exceptions and some room for evolutionaryunderstanding, he's not necessarily saying anything more than Scaliaor Thomas would say."
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