WASHINGTON — As the Supreme Court nominee John G. Roberts continued courting senators, Democrats began laying the groundwork on Friday to challenge him in his confirmation hearings, in part by seeking to shift the focus away from volatile issues like abortion to the broader subjects of personal privacy and government power.
Although interest groups on both sides are focusing keenly on what the confirmation might mean for abortion rights, both Democrats and Republicans are trying to recast that debate in their own, less polarizing terms — Democrats talking about a wider right to privacy, and Republicans speaking of a general deference to the elected branches of government.
"Be careful that you don't translate this entire process into a referendum on Roe v. Wade," Sen. Richard J. Durbin, D-Ill., and a member of the judiciary committee, told reporters on Friday after meeting with Roberts for about 40 minutes.
Durbin said he did not expect the nominee to offer his view of that 1973 decision, which first established abortion rights and could come up again before the court. But, Durbin said he did expect him to discuss the constitutional principles underlying the decision — and specifically the right to privacy that the court first established eight years earlier in Griswold v. Connecticut, which involved the far less controversial right to buy contraceptives.
The Griswold ruling, Durbin said, was "a perfect example" of the kind of cases Roberts should be required to discuss. "The court found a right to privacy in the Constitution, and said we will honor it and allow individuals and families a certain space where they can be protected from government interference," he said. "I am anxious to know if Judge Roberts believes in that space, believes in that right to privacy, because it plays out way beyond the obvious, way beyond the Roe decision."
Earlier, at a breakfast meeting with reporters, Sen. Edward M. Kennedy, D-Mass., indicated that he intended to question Roberts closely not only about "privacy rights," but also about his views on the clause of the Constitution that authorizes the federal government to regulate interstate commerce.
Since the New Deal, that clause has provided the basis for a host of federal regulations and social programs including welfare, the minimum wage laws, civil rights laws and environmental rules. Some conservative judges and scholars have argued that the clause should be more narrowly interpreted, restricting the authority of the Congress and giving states more latitude.
In a sign that he shared that view, Roberts, who currently sits on the federal appeals court for the District of Columbia, argued in one dissenting opinion that the federal government did not have the power to block a California real estate development because it endangered the habitat of a certain toad native to that state.
Seizing on that opinion, Kennedy warned of "an enormous danger" if the Supreme Court turned away from the broad, New Deal interpretation of the commerce clause. "Can you imagine the sort of nation we would be if each state had to pass each civil rights law separately?" he asked. "We would be a lesser nation."
Republicans, for their part, were eager to leave Roe and other abortion-rights precedents out of the confirmation hearings. After his own meeting with Roberts, Sen. Tom Coburn, R-Okla., and a physician known for his outspoken opposition to abortion, said: "I poked around a whole lot. I was trying to do a medical exam on him from the mental issues standpoint, trying to find out what he believes." He said he hoped to meet with the judge again next week alone, he said, without aides or escorts.
But Coburn said he did not press him on the abortion precedents. "My litmus test is, do they believe in the limited role of the court in terms of following and interpreting the Constitution and not making policy," he said.
Sen. Jeff Sessions, RJ-Ala., said he had advised Roberts "not to get drawn into specific cases or fact patterns." Sessions said his meeting had satisfied him that Roberts would defer to the elected branches of government.
"If we have judges of this nature on the bench, we may not be so excited about a Supreme Court nomination," he said. "It becomes more important — if the judges are beginning to decide social and political issues — who is on it. But if they allow that to the legislative and executive branches, people who are accountable to voters, things might calm down."
President Bush, in his weekly radio address to be delivered Saturday, said the Senate confirmation process "was off to a good start."
"In the weeks ahead, the Senate will have an opportunity to rise above partisanship," Bush said, adding, "It is important that Judge Roberts be confirmed before the court reconvenes on October the 3rd."
But Democrats, including both Kennedy and Durbin, continued to warn that they might seek to block Roberts's confirmation if he was not forthcoming about his legal thinking or if the White House declined to provide documents from his past legal work for Republican administrations.
"Let me tell you, I think he was evasive" in his previous confirmation hearings, said Durbin, one of three Judiciary Committee members who voted against recommending Roberts's nomination to the appeals court.
In their meeting on Friday, Durbin said, "I urged Judge Roberts to be as honest and forthcoming as he can."
He added, "He said several times, 'I want to look at previous nominees who came before the committee, and what they were able to say."' But Sessions, aware that the Democrats were in the minority, said, "If they are unsatisfied with his answers, they can always vote no."