Aug. 2 (Bloomberg) -- Memos U.S. Supreme Court nominee John G. Roberts wrote two decades ago questioning whether there is a constitutional right to privacy will likely draw scrutiny at his Senate confirmation hearings.

Democrats on the Senate Judiciary Committee have said they want to explore Roberts's views on those and other topics including state-federal relations and the scope of Congress's power to regulate business.

In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that derided the ``so-called `right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide.

Griswold, also a former dean of Harvard Law School, was ``arguing as we have that such an amorphous right is not to be found in the Constitution,'' Roberts wrote in the memo, among papers released by the National Archives and Records Administration in advance of his Senate confirmation hearings set to begin Sept. 6.

Robert, then a special assistant to Smith, attached a draft thank-you letter that he recommended the attorney general send praising Griswold for sounding ``some of the themes I have been addressing recently'' about courts ``restricting themselves to the proper judicial function.''

President George W. Bush nominated Roberts on July 19 to succeed retiring Justice Sandra Day O'Connor, the first woman on the nation's highest court.

`Legitimate Question'

After meeting with Roberts on July 22, Illinois Senator Dick Durbin, the Senate's second-ranking Democrat, said he wanted to question the nominee during confirmation hearings about his views on privacy.

``I have never used a litmus test'' on abortion, Durbin told reporters. ``But I do want to know what he thinks of the underlying principle of Roe v. Wade. I think that is a legitimate question, the question of privacy.''

The documents released by the National Archives also include a ``Draft Article on Judicial Restraint'' stating that courts should not ``discern such an abstraction in the Constitution'' as the ``right to privacy.''

The Supreme Court invoked that right in 1965 to overturn a Connecticut law that outlawed contraception. The draft article said ``the broad range of rights which are now alleged to be `fundamental' by litigants'' bear ``only the most tenuous connection to the Constitution.''

`His Views'

Neither Roberts' name nor initials are on the document, though the same box contains a Sept. 30, 1981, memo to Roberts from Bruce E. Fein, an associate deputy attorney general, that suggested inserting a paragraph into ``your draft article on judicial activism.''

The memos in the Roberts file should trigger questions at the confirmation hearings about his views on abortion and privacy, said Elliot Mincberg, legal director of People for the American Way.

``The question will come up on a lot of these, to what extent he is giving his views or to what extent he is reflecting'' the Reagan administration's views, Mincberg said. ``He has signed up for this job in the administration because he believes in those views.''

Lawmakers shouldn't use what Roberts said as a government lawyer as evidence of how he would decide an issue as a Supreme Court justice, said Manuel Miranda, executive director of the Third Branch Conference, a Washington-based conservative advocacy group working to support the Roberts nomination.

``When he is playing the role of a government lawyer he is wearing an entirely different hat'' and his writings from those days ``may not necessarily reflect any views he might have as a judge,'' Miranda said.

School Busing

In another memo, Roberts urged the Justice Department under President Ronald W. Reagan to support legislation to strip federal courts of jurisdiction over such issues as school busing to end racial segregation.

Last week, Massachusetts Democratic Senator Edward Kennedy, citing an article Roberts drafted on legislation to extend the Voting Rights Act, said the nominee had a ``rather cramped view'' of the law. Kennedy said he would have questions about the memos Roberts wrote about civil rights during his service in the Reagan administration.

Senate Democrats have also asked the Bush administration to provide copies of memos Roberts wrote about 16 cases that went to the Supreme Court when he was deputy solicitor general from 1989 to 1993.

Roberts signed a brief in which President George H.W. Bush's administration said it believed the high court's Roe v. Wade abortion decision was ``wrongly decided'' and should be overturned. The Bush administration has said it won't provide the memos, citing attorney-client privilege.

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net.

Last Updated: August 2, 2005 16:24 EDT