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Supreme Court nominee John Roberts, like Sandra Day O’Connor, is polished and popular, with a warm plainspoken style and surprising pluck. When it comes to substance, however, the two have differences that will nudge the divided Court to the right if, as expected, Roberts is confirmed to succeed the retiring O’Connor. The differences have been illuminated in thousands of pages of documents from Roberts’ time as a Reagan administration lawyer, a Bush administration attorney and a federal appeals court judge. They reveal a man likely to fall in line with his mentor, conservative Chief Justice William H. Rehnquist, more often than O’Connor did during her 24 years on the Court. Although Rehnquist and O’Connor agreed on about three-fourths of the Court’s cases, they parted company on some of the hottest issues. With O’Connor’s departure, the Court is divided 4-4 on abortion restrictions, campaign finance limits, discrimination laws and religion. Roberts will be questioned at his Senate confirmation hearing about those matters and others. Until then, his previous work provides the main insight into where he will stand on issues before the Court. For example, documents show Roberts’ support for prayer in public schools and national identification cards and how he fretted over extended death penalty appeals. He advocated broad power for the White House and disparaged state efforts to combat discrimination against women. Roberts referred in one memo to the “abortion tragedy” and helped write a legal brief that argued for overturning Roe v. Wade, the landmark 1973 abortion case. And as a judge, he embraced police authority in car searches. Many of those stands put him at odds with O’Connor — and in line with Rehnquist — and illustrate the high stakes of the first vacancy at the Supreme Court in 11 years. Of the nine justices during O’Connor’s tenure, seven were appointed by Republican presidents. But two of them, John Paul Stevens and David H. Souter, often vote with Justices Ruth Bader Ginsburg and Stephen Breyer, appointed by Democratic President Bill Clinton. O’Connor, a moderate, was the pivotal vote, shifting between the liberal wing and the conservative foursome headed by Rehnquist. As the first woman justice, O’Connor voted to uphold Roe and has been influential in women’s issues. Earlier this year, she wrote a 5-4 decision that expanded the scope of the Title IX gender equity law. Rehnquist, who hired Roberts as a law clerk in 1980, disagreed with the ruling. Rehnquist and O’Connor also were sometimes at odds on religion. O’Connor’s vote has helped the Court bar government officials from erecting Ten Commandments displays for religious purposes. The two justices also differed on whether to prohibit clergy-led invocations at public school graduation ceremonies and student-led prayer at football games. Roberts said in 1985 that it “seems indefensible” that the Constitution prohibits a moment of silent reflection or even silent prayer in schools. With Roberts on the Court, “we will see a lessening of whatever separation (of church and state) is left,” predicted Marci Hamilton, a former O’Connor clerk who teaches at Yeshiva University’s Cardozo School of Law. O’Connor’s departure leaves the Court evenly split in another area: affirmative action. She supported it in some instances. In his Reagan-era writings, Roberts seemed unsympathetic to what he called “quotas.” Richard Garnett, a Notre Dame law professor and former Rehnquist clerk, predicted only minor changes with Roberts, 50, replacing the 75-year-old O’Connor. “When people say there will be seismic changes in affirmative action and religion, I think that’s just smoke,” Garnett said. “I don’t think there’s much room for change. There’s room at the margins in close cases.” The thousands of documents that have been released cover Roberts’ work when he was in his 20s and early 30s. It is unclear if his views have changed in the past two decades. As a judge since 2003, Roberts has not dealt with the hot button issues of the Reagan years, like race and abortion. He has, however, won a reputation as a judge friendly to government and police. That’s not necessarily so of O’Connor, a self-described Arizona cowgirl with an independent streak. She authored a 2000 ruling that limited roadblocks and a year later filed a bitter dissent when the Court said police were justified in arresting and handcuffing a Texas mother for failing to wear a seat belt. Roberts cited the Texas case when he wrote a decision last year that upheld the arrest of a 12-year-old girl who ate french fries on Washington’s subway system, where eating is forbidden. Police power is one of the subjects that will be addressed this fall by the high court, along with cases dealing with abortion, assisted suicide and the death penalty. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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