Rules of the game: how Democratic senators will try to trip John Roberts up.

JOHN ROBERTS's Senate confirmation hearings are set to begin on September 6. They could be a useful opportunity for exploration of the character and qualifications of President Bush's first nominee to the Supreme Court; more likely they will be a grandstanding political ping-pong match with Roberts serving as the ball. When the Washington Post reported recently that Roberts's confirmation was all but assured, liberal Vermont senator Patrick Leahy stepped in within hours to douse any talk of inevitability; he characterized Roberts as an "eager and aggressive advocate" for the extreme Right.

Most of the Democrats' pit bulls on the Senate Judiciary Committee will begin any discussion about Roberts with the admission that he has impressive credentials. New York's Chuck Schumer conceded that Roberts is an "impressive, accomplished, and brilliant lawyer," who "appears to be a decent and honorable man," with a "remarkable resume"--but that, Schumer reported, "by itself, is not enough to get my vote." So what is enough? According to Schumer, it is the assurance that John Roberts fits within the "broad mainstream." But Chuck Schumer's definition of mainstream probably differs a bit from, say, Ronald Reagan's, so his statement does not tell us much. His colleague, California's Barbara Boxer, is a little less opaque about the subject, stating unequivocally that she will vote against Roberts unless he vows to uphold the right to abortion created by Roe v. Wade and threatening to grind the nomination process to a halt unless Roberts answers her questions on Roe.

For the Left, then, the confirmation process is a political grilling to pin Roberts down on their favorite issues-a procedure to which Texas senator John Cornyn, a Judiciary Committee Republican, objects: "It's critical to remember that a Supreme Court nominee is not running for political office. And it would be wrong to ask him to make promises to politicians."

A senator certainly has a right to ask any question in the hearing, but Roberts has an equal right not to answer. As Delaware Democrat Joseph Biden (then chairman of the Judiciary Committee) told Ruth Bader Ginsburg during her confirmation hearings, nominees "not only have a right to choose what you will answer and not answer, but ... you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court."

Senators should not--and do not--seriously expect Roberts to answer specific questions about, for example, whether he would vote to overrule Roe or strike down the Pledge of Allegiance. David Souter repeatedly declined to answer questions regarding Roe during his own confirmation hearings. Ginsburg declined to answer specific questions on a whole host of matters--including the death penalty and school vouchers-that might one day come before her on the Court. Her position that answering such questions would compromise her ability to judge those issues fairly as a justice has established the gold standard for future nominees facing confirmation hearings. Expect to hear her name invoked, and rightfully so, many a time in the Roberts hearings.

Knowing that they will not achieve much by asking direct questions about the nominee's views--except, perhaps, scoring a few points with their base--Democratic senators will interrogate Roberts on "judicial philosophy." But these questions will be little more than indirect ways to trap the nominee where the questioner knows a frontal assault will fail.

Just a sampling of these questions belies the notion that they are anything more than a political litmus test for Roberts. Because the Court has trended in their direction on many politically charged issues, a favorite stalking horse for Democrats will be Roberts's views on the role of "stare decisis," or the degree to which prior decisions of the Court are inviolable, whether rightly decided or not. As Justice Scalia has described stare decisis, "[Its] whole function ... is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability." Stare decisis was the crutch upon which the Court leaned in upholding Roe (albeit in a drastically revised form) in the 1992 Planned Parenthood v. Casey decision. Left without a substantive justification for preserving abortion rights as a constitutional matter, five justices fell back on the need for stability in the law.

So stare decisis is simply a senator's Latin term for: "What about abortion rights, gay rights, and the other judge-made constitutional rights we hold so dear?" People for the American Way listed stare decisis as question number one on its list of 20 for a nominee, stating that "the American public deserves to know Roberts's views on the rights and legal protections we currently enjoy." Taking that cue, Democrats on the committee will demand nothing short of strict adherence to Roe and similar decisions that have so polarized the electorate. (Ironically, the current Court cast aside any concerns about precedent in creating many of the rights that the Left now celebrates, such as the right to homosexual sodomy declared in Lawrence v. Texas. Lawrence overruled the very recent--1986--decision in Bowers v. Hardwick.)

Obviously, no nominee would tell the Committee that precedent is always sacrosanct, any more than he would say that he would never follow a prior decision of the Court. But, especially with respect to decisions interpreting the Constitution, it cannot be stressed enough that stare decisis must not be treated as an inflexible rule that permanently embeds wrong decisions into our legal fabric. Where the Court insists on stepping into political debates by declaring certain subject matters off limits for the elected branches, it is much more important to have the law right than settled. This is a principle that Justice Brandeis recognized long ago, noting that the Court had often overruled prior decisions in "cases involving the Federal Constitution, where correction through legislative action is practically impossible." Where a constitutional rule is at issue, Brandeis said, the Court "bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Roberts would be wise to follow Brandeis's counsel.

Another shibboleth of the Left is "privacy rights." The Constitution, of course, does protect privacy expressly in a couple of places, such as the right to be secure in one's "person, houses, papers, and effects," found in the Fourth Amendment, but it is unlikely that liberal senators are seeking assurances about unreasonable searches and seizures in their questions about privacy. Instead, "privacy" is code for a social policy disguised as law: abortion, gay rights, and other emerging concepts of sexual rights. Justice Souter adeptly fended off any questions about the right of privacy in his confirmation hearings. At one point, for instance, he declined to answer a question about whether he agreed with the result in Griswold v. Connecticut, the case that gave rise to the modern "privacy" doctrine, noting that it came too close to tipping his hand on Roe: "I recognize the implications from any challenge that may come from the other privacy case that is on everyone's mind."

Roberts will likely be pressed even harder on privacy, given his involvement as deputy solicitor general in a case in which the Bush 41 administration called, almost parenthetically, for Roe to be overturned. But if Democrats expect solace from his answers in the hearings, they will likely be disappointed. They will not have to wait long, however, to see how a Justice Roberts approaches "privacy" issues: The Supreme Court will hear a case this fall on parental notification in teenage abortions, and will soon be asked to review lower-court decisions striking down the federal partial-birth-abortion ban. Roberts will more than likely keep his powder dry at the hearings on this divisive political issue, knowing those cases may soon be before him.

A third focus of interest will be federalism, a mix of issues that addresses the scope of Congress's power under the Commerce Clause and the proper role of the federal government as it relates to the states. What might sound like a harmless query into matters of political science is really a question about how far Roberts will let Congress dictate policy to the states. In recent years, the Supreme Court has--very slightly--pared back federal power, striking down federal laws that had no conceivable connection to the enumerated powers in the Constitution in areas where states had already legislated successfully.

Because such rulings affect the ability of Congress to enact laws adored by feminists, environmentalists, civil rights activists, and trial lawyers, what should be a highbrow debate about the balance of authority in government has become a mudslinging war. In this area, liberals want to throw stare decisis out the window by reversing a whole line of federalism decisions of the Rehnquist Court. Jeffrey Sutton and William Pryor, now federal appeals-court judges only after extended and contentious confirmation battles, were both opposed by special-interest groups that labeled them "anti-rights" for having the audacity to suggest that states do a better job of protecting those rights than the federal government. Roberts's nomination has raised similar red flags for the interest groups: When he raised the question of whether the Court's recent federalism decisions might prohibit the application of the Endangered Species Act to prevent development that might affect the migration of a species of toad found only in California, his comment set off alarm bells for the proponents of unlimited congressional power.

The Roberts confirmation hearings, which Republicans hope to wrap up within a couple of days, will be rife with other questions, both the in-your-face and the beating-around-the-bush variety. Roberts will face questions on every subject on Ted Kennedy's political wish list-and predictable feigned indignation when he doesn't give the Lions of the Left the answer, and the assured vote, they are looking for.

Mr. Coffin, a partner in the Washington, D.C., law firm of Steptoe & Johnson LLP, was a deputy assistant attorney general for the Civil Division of the U.S. Department of Justice from 2002 to 2004.