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Centrist Caution on Roberts

Senate Republicans who support abortion rights are walking a fine line on the question of whether to support John Roberts’ nomination to the Supreme Court.

Centrist Republican Senators are caught between their desire to keep abortion legal in the United States — a goal that could be hampered if Roberts is as willing to overturn the landmark Roe v. Wade decision as some of his supporters believe he is — and loyalty to their party.

While many left-leaning abortion-rights groups instantly came out against Roberts, many Republican abortion-rights supporters, such as Sens. Olympia Snowe (Maine) and Lincoln Chafee (R.I.), have been quietly consulting with GOP abortion-rights groups and weighing how much to support Democrats in their quest to secure the release of documents relating to Roberts’ tenure in the solicitor general’s office of the first Bush administration.

“I’ve talked with several groups, and they’ll be sharing information with me,” Snowe said. “They’re examining his record, looking at some of the cases.”

Representatives from those GOP groups say they have been counseling Senators to take a wait-and-see approach to the Roberts nomination.

“We are cautiously optimistic and proceeding slowly with our Senators,” said Jennifer Stockman, national co-chairwoman of the Republican Majority for Choice. “From conversations with moderate Republican Senators, it is not a rubber stamp for them at all.”

Stockman noted that her group, along with the Republicans for Choice PAC, was “helping [Senators] formulate questions to discern his judicial philosophy.”

So far, Roberts’ record on abortion and his opinions on Roe v. Wade, the landmark 1973 Supreme Court decision that barred states from outlawing abortion, remain murky. The limited paper trail on Roberts, at least from what’s available so far, includes his 2003 statement that Roe v. Wade is “settled law” as well as numerous briefs from the 1980s, including one supporting the militantly anti-abortion group Operation Rescue, in which Roberts argued in favor of overturning Roe and leaving the legality of abortion up to state legislatures.

Stockman called the nomination “a conundrum for us” and appeared skeptical that Roberts is as moderate as some are trying to portray him. But she acknowledged that defeating his nomination would be a long shot, given that all Democrats and at least six Republicans would have to vote against him. That’s considered a highly unlikely scenario, but one that Stockman said could become more realistic if evidence came to light showing that Roberts had an ideological drive to make abortion illegal.

“If there was something much more revealing about his position [on Roe], I think he could be in jeopardy. There is a strong group of Republicans that do not want to see Roe v. Wade overturned,” she said. “If it became apparent that he wants so-called life issues to go back to the states, I do think that would cause an uproar” with centrist Republicans.

That’s why the Republican Majority for Choice supports efforts, primarily by Senate Democrats, to get the White House to release Roberts’ papers from the first Bush administration, Stockman said.

“We’re trying to get as much information as possible,” she said.

Even Senate Judiciary Chairman Arlen Specter (R-Pa.), who supports abortion rights, indicated that he felt Democratic demands were not out of bounds, calling their letter to the White House last week requesting more documents “perfectly appropriate.”

But Snowe and other Senators appear conflicted about asking the White House for more information on Roberts.

Snowe said she was unsure of what documents should or should not be off-limits to Senators during the run-up to the confirmation vote.

“The more we see the better,” she said in an interview. Later, she clarified that she didn’t want to do anything that would “have a chilling effect on the president’s ability to do his job.”

But because of the limited information on Roberts, other groups that favor abortion rights appear more inclined to give Roberts a tentative thumbs up.

Ann Stone, national chairman of the Republicans for Choice PAC, said she has information from close associates of Roberts that indicates he would be more likely to uphold Roe v. Wade from a seat on the Supreme Court.

“His friends tell us that he’s not going to do something that would turn civilization on its head,” Stone said.

For most Republican abortion-rights supporters, the issue of whether they trust Roberts to uphold Roe v. Wade comes down to whether he believes his statement from 2003 that Roe v. Wade is “settled law.”

Specter indicated exactly that in a July 24 New York Times opinion piece, saying, “It would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.”

Another abortion-rights supporter, Sen. Susan Collins (R-Maine), said on July 21 that she puts a premium on whether Roberts has an agenda on abortion.

“Now, obviously the Supreme Court has the ability to overturn its precedents [in Roe v. Wade and other cases], but I’m looking for a justice who will respect precedents,” she said.

Similarly, Sen. Lisa Murkowski (R-Alaska) said she wants a balanced jurist on the court.

“I want somebody that is going to, in every case, take the facts of the particular situation in front of them and apply the law,” Murkowski said. “I don’t want to see the court completely overturn Roe v. Wade. … I would like to think that our justices do not operate in a bubble, but that they do appreciate the real world consequences of their decisions.”

Chafee echoed that sentiment.

“To start to nibble at Roe v. Wade … it’s a highly emotional issue. It’s not good for the country,” he said.

However, all Republican abortion-rights supporters said they will not evaluate Roberts solely on the abortion issue, even though it is clearly one of the top issues they are considering.

“I’m not saying I have a litmus test here, but obviously, we have some serious issues in terms of how [Roe v. Wade] would be viewed,” Snowe said.

Murkowski said she is looking at Roberts “in the context of the whole. … I’m not looking at it as it relates just to Roe v. Wade.”

While groups on both sides of the abortion divide are openly saying that they expect Roberts to vote to overturn Roe v. Wade, a few abortion-rights foes, such as centrist Republicans, are less certain how he would act on the Court.

“The written record is not there,” said Sen. Sam Brownback (R-Kan.), an ardent abortion-rights opponent and Judiciary Committee member. “I think the information will basically be thin. We’re all positive, but I want to see how he answers questions. If he says [again] that Roe v. Wade is settled law, that raises questions for me.”

But as Sen. John Cornyn (R-Texas), an abortion-rights opponent and Judiciary member, pointed out, “If we’re going to respect the independence of the judiciary, we’re not going to be able to satisfy our curiosity on all these questions.”

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