Above the Fray at the Roberts Hearing

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Just as Washington big shots get skyboxes for Redskins games, top politicos are perching themselves high above the action at the Roberts hearing in the room designated as Hart 216.

Above the reporters and general public in the field seats, a handful of glass-fronted booths had been doled out to politicians and Washington insiders. Judiciary Chair Arlen Specter grilled Roberts on Roe v. Wade right from the start, as skybox onlookers such as former Solicitor General Ted Olson, former Presidential candidate Gary Bauer and former Indiana Representative David McIntosh crammed into Box 3e to watch the hearing on closed circuit television. It was a private setting, which Bauer and McIntosh, for their part, put to use for a quick briefing by nomination-strategy staffers from the offices of Senate Majority Leader Bill Frist and Judiciary Committee member Jon Kyl.

From the conservative vantage point, the hearing looked good. Roberts wriggled out of each creative whack-a-mole attempt by senators to get him to explain his view of Roe. Specter, whose vote is considered safe but certainly key to Roberts' success, dove into the Roe line of questioning immediately, asking the judge whether he believed in such a thing as a right to privacy in the Constitution, and whether Roe qualifies as, in Specter's words, a super-duper precedent thanks to 38 opportunities the Court has had to overturn it. (Roberts, in one of his Reagan-era memos released last month, had referred to a "so-called" right to privacy.) All Specter heard from Roberts was an acknowledgement that the Constitution does contain a right to privacy, and another that overturning earlier decisions isn't undertaken lightly. Specter tried harder, asking Roberts if he believed that Roe has "become part of our national culture," quoting from a Supreme Court opinion on one reason for respecting earlier decisions. Roberts refused to answer, saying he didn't want to get into "the application of principles to a particular case."

Delaware Democrat Joe Biden tried asking Roberts whether a state could pass a law outlawing abortion, drawing from a question that Ruth Bader Ginsburg had answered at her hearing. Roberts said he couldn't answer, maintaining that Ginsburg had been freer to comment because she had written articles on the subject of abortion. Sen. Diane Feinstein tried yet another approach, philosophically asking whether the right of privacy applies to the beginning and end of life. Roberts again deflected. She then asked whether he agreed with the ruling in a 1992 abortion case, Casey v. Planned Parenthood, in which the majority specifically declined to overrule Roe. He replied only that the Casey decision was "a precedent on a precedent." Maybe that makes it one of Specter's "super-duper precedents," but it was hard to read much into the horizontal crease in Roberts' forehead (a byproduct of the look of intense concern with which he greeted each utterance by his questioners).

In the skyboxes and elsewhere, there were plenty of Roberts supporters on hand to tell the press how wonderfully they thought he was performing. Members of the Senate Republican Conference staff, under Pennsylvania Republican Rick Santorum, decided early on in the hearing planning process that they wanted a noticeable showing by The Right in the room. "We went to (judiciary committee staff) and said we don't want the nomination hearing to be like the Christian thrown to the lions with all the Romans around the outside going thumbs up or thumbs down," says a Senate Republican staffer involved in the planning. The GOP staffers feared a repeat of the Bork and Thomas hearings where the audience was predominantly hostile. So in addition to the skyboxes, there has been a consistent presence of Robertss supporters, including apparently ad hoc groups like 'Women for Roberts'.