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Originally published Wednesday, September 21, 2005 at 12:00 AM

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Bruce Ramsey / Times editorial columnist

The cagey nominee and the Constitution

In his calculated genuflections to Democrats in the Senate, Supreme Court nominee John Roberts left himself more wiggle room than it sometimes...

In his calculated genuflections to Democrats in the Senate, Supreme Court nominee John Roberts left himself more wiggle room than it sometimes sounded. And it wasn't just on abortion.

Sen. Edward Kennedy, D-Mass., was interested in Brown v. Board of Education, the 1954 case that banned segregation in public schools. William Rehnquist, the late chief justice, had expressed his doubts about that case half a century ago. How about the new chief justice? Would he be sensitive, Kennedy asked, to minorities who were not asking for a handout, but a hand up?

Certainly. Roberts expressed his sensitivity. He blessed the Brown decision. But in the Brown decision, he said, Chief Justice Earl Warren had not ruled that segregation was illegal because it forced black Americans into poor schools. Disparity was not the constitutional problem. "The genius of the decision," Roberts said, "was the recognition that the act of separating the students was where the violation was."

It was a careful answer, and one that bodes ill for what the Kennedy wing delicately calls "taking race into account."

Sen. Patrick Leahy, D-Vt., was concerned about executive authority. While politely declining to name names, Leahy said some presidents had claimed "almost imperial powers" when it came to war. He asked: "Does Congress have the power, then, to stop a war?"

Good question.

"Congress certainly has the power of the purse," Roberts said. There was also the 1952 case of Youngstown Sheet & Tube v. Sawyer. In that case, the Supreme Court told President Truman he could not seize all the steel mills in the United States merely because there was a war on and workers were about to strike. In that case, Justice Robert Jackson had famously declined to define the president's power except to say that when he acted with Congress behind him, his power was greatest, and when Congress was against him, it was at a low ebb.

Roberts noted that Jackson had been a cheerleader for executive power earlier in his career, as attorney general to Franklin Roosevelt. On the court, Jackson had changed his stripes, sometimes opposing executive power.

"Are you sending us a message?" Leahy said.

The audience laughed, as for a question that need not be answered.

Then came Sen. Charles Schumer, D-N.Y., who wanted Roberts to kowtow to Wickard v. Filburn, the case that allowed the Department of Agriculture to penalize farmer Roscoe Filburn for raising wheat to feed to his own chickens.

This exercise in New Deal authoritarianism had been authored by a more deferential Justice Jackson a decade before the steel case. The Wickard case has been used to justify a phalanx of governmental assertions of power, from the requirement for 1.6-gallon toilet tanks to the recent suppression of medical mari-juana in California. The Wickard case is legal precedent, of course; but it is just the sort of precedent that a supporter of the Constitution might want to question.

Roberts wouldn't say what he thought of the Wickard case. Schumer pressed him: The case is 63 years old; surely it is settled, Schumer said.

No, Roberts said, it is not. Justices Rehnquist, Clarence Thomas and Sandra Day O'Connor almost overruled it in the medical-marijuana case. Can't talk about it.

Well, good.

The confirmation process tries to produce a nominee who will be def-erential to the president and Congress. Schumer wants deference to the Congress, as does Kennedy. Leahy wants toughness — directed at the president. No branch wants constitutional discipline imposed on itself.

Roberts' caginess gives me a glimmer of hope that this man will enforce the Constitution, at least some of the time.

Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com

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