The political chess match between the White House and Senate Democrats over the future of the Supreme Court took on new levels of complexity Thursday as the Senate Judiciary Committee recommended John G. Roberts Jr.’s confirmation as Chief Justice. With a full Senate vote expected next week, normal Democratic politics have turned upside-down. Ahead of the Judiciary Committee’s vote, the habitually moderate minority leader, Harry Reid, announced his opposition to Roberts, while liberal firebrand Russell Feingold and reliable civil libertarians Patrick Leahy and Herb Kohl voted to support the nominee in spite of Roberts’s evasive performance at his confirmation hearing.
What is going on? Are these Roberts converts really persuaded, in Feingold’s words, that the nominee “will not bring an ideological agenda” to the Supreme Court? That’s hard to imagine. Leaving aside Roberts’s still-withheld memos from his days as Deputy Solicitor General, his available track record as a judge remains as riddled with ideological agenda-setting as it was before his confirmation hearings. While it was reassuring to learn that Roberts approves of Brown v. Board of Education and thinks married couples should have the right to contraception, it is hard to imagine any nominee with a serious claim on the job standing up for segregation or the rhythm method.
In fact, during the hearings Feingold was one of the few Judiciary Democrats to throw Roberts off his game. On the final day of hearings Feingold pressed Roberts to explain why he would not amplify his views on an enemy-combatant case already decided by the Supreme Court. It was, the nominee explained, a matter of ethics:
What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?
Well, the harm would be affecting the appearance of impartiality in the administration of justice.
With Roberts’s profession of impartiality, Feingold abruptly shifted his line of questioning to the now-notorious Hamdan v. Rumsfeld–the suit brought by Guantánamo detainees earlier this year in which appellate judge Roberts ruled for the Administration even while being interviewed by the White House for his Supreme Court seat. As Feingold pressed Roberts on the details of his interviews–in which “the appearance of impartiality in the administration of justice” is precisely the issue–the unflappably eloquent nominee suddenly started stumbling over dates and facts and his normally-precise legal syntax deterioriated into the dodgy sentence fragments of a politician caught dissembling:
May 3, yes. Well, whatever it was, I don’t remember the exact dates, but I’m relying on the–if that’s what I said in the questionnaire, yes. I don’t have an independent recollection.
As for abortion rights and sexual privacy, Roberts offered minimal comfort. He professed to approve the “outcome” of Griswold v. Connecticut–the 1965 case establishing married couples’ right to purchase contraception–but pointedly said nothing about the Court’s reasoning in the case, which figured so largely in Roe v. Wade. While Roberts said he believes the Constitution implies a privacy interest–setting him, like his mentor William Rehnquist, apart from Scalia-Thomas absolutists–he nowhere suggested where the boundaries of that privacy interest might lie and refused to comment at all on gay rights cases. In his written replies to Senate questions sumbitted after the hearing, he said only that Griswold and subsequent privacy-based cases like Roe and Planned Parenthood v. Casey are “precedents deserving of respect,” but “respect” in a judicial context simply means that such cases would need to be considered before being overturned.
Trumped by Roberts’s and the Bush Administration’s evasions, Judiciary Committee Democrats faced a choice. Five–Biden, Kennedy, Feinstein, Durbin and Schumer–took the path of principled opposition. The Roberts converts seem to have made a different choice, a tactical maneuver. All have their eyes on next week, when the Administration is likely to name its new replacement for called-back-from-retirement Sandra Day O’Connor. Democrats voting against Roberts seek to lay down a marker: in the case of Reid, not only reassuring the Democrats’ civil-rights constituencies but sending the White House a message that the Senate leader is not ready to roll over on further resistance to proper Senate requests for information. The converts are playing a different game: hoping, perhaps, to enhance their standing to oppose a more conservative replacement for O’Connor, to suggest to the public that they are not knee-jerk opponents of any Administration nominee.
This is Washington calculus at its most complex–and most fraught with dangers and consequence. As a replacement for Chief Justice Rehnquist, Roberts is an influential choice who will reaffirm Rehnquist’s role but not fundamentally change the balance on the Court. All along, it has been the O’Connor replacement that counts as the real game. Commenced with O’Connor’s retirement and Judge Roberts’s nomination in July, halted with the death of Chief Justice Rehnquist and Roberts’s renomination for his seat, that game is now once again afoot.