When Senator Arlen Specter, the Republican chairman of the judiciary committee, opened the confirmation hearings for John Roberts Jr., George W. Bush’s nominee for Supreme Court chief justice, he pointed out that this session was occurring in the ornate Senate Caucus Room, the site of some of the most famous hearings in the republic’s history: “the Titanic, Teapot Dome, the Army-McCarthy, Watergate, Iran-contra.” Did Specter notice these past episodes all involved scandal or disaster? But there was no sense of foreboding in the air. As Roberts sat and smiled in the crowded room before the committee–with Ed Gillespie, a former Enron lobbyist and GOP chairman recruited by the White House to assist in the nomination process, at Roberts’ side–it was clear that Roberts needed only get through a few days without drooling or disrobing to win the number-one judicial post in the nation. Little would matter. Not Roberts’ answers–or lack thereof–to questions regarding his judicial philosophy or his views on privacy rights, presidential authority, or congressional power. Thus, the verbiage of the first day of the Roberts hearings–in which all the senators and the nominee delivered opening remarks–was mostly an academic exercise. There were grand statements about rights, judicial power, and the American experiment. Roberts talked about “infinite possibilities” conveyed by the “endless fields” of his native Indiana and vowed to be a judicial umpire, not to “pitch or bat.” But these scripted statements of little intrinsic value did outline the political stratagems of each side.
In his opening remarks, Specter raised several pointed topics. He whacked the Supreme Court for voting to undermine congressional prerogatives, recalling that the court ruled against the Americans with Disability Act in 2001 (on a 5-4 split) and then four years later ruled for it (on a 5-4 split). He criticized the court for invalidating portions of legislation designed to protect women against violence–a ruling in which the court claimed Congress’ “method of reasoning” was defective. Specter declared he would not ask Roberts whether he would overrule Roe v. Wade, but he said he would ask whether Roberts believes the Constitution contains a right to privacy. But, of course, there was no implied threat: say the wrong thing, and I might vote against you. Specter did not even say he expected candid replies: “Senators have the right to ask whatever questions they choose, and you, Judge Roberts, have the right to answer as you see fit–or not answer.” (Nod, nod, wink, wink?) In fact, most GOP senators defined the central issue of the hearing as how far committee members (meaning, Democrats) could go in grilling a judicial nominee. Democrats responded by saying that with so much at stake it was vital to press Roberts on a host of crucial subjects. Senator Patrick Leahy, the senior Democrat on the committee, devoted most of his remarks to the premise that an “open and honest public conversation with the nominee…is an important part of this process.”
But process never gets a political side too far. (How many Americans are inspired by the Democrats’ demand that Roberts shares his views on past Supreme Court decisions?) The critical question is whether Roberts is good or bad for the United States. Democrats spent too much time on countering the Republican strategy (questioning the questioning of judicial nominees) and not enough on dissecting what’s already known about Roberts. Senator Ted Kennedy gave an impassioned speech on the importance of various individual rights. He only devoted one sentence to challenging Roberts’ record: “There are real and serious reasons to be deeply concerned about Judge Roberts’ record. Many of his past statements and writings raise questions about his commitment to equal opportunity and the bipartisan remedies we have adopted in the past.”
In perhaps the only highlight of the day (for depressed Democrats), Senator Joseph Biden went further. He first enthusiastically derided constitutional literalism and defended the idea of a living and adaptable Constitution that recognizes a right to privacy and that permits the federal government to “act as a shield to protect the powerless against major economic interest” and to “stamp out discrimination.” Then he declared, “Judge, if I looked only at what you’ve said and written in the past, I’d feel compelled to vote no. You dismissed the Constitution’s protection of privacy as a ‘so-called right,’ you derided agencies like the Securities and Exchange Commission that combat corporate misconduct as ‘constitutional anomalies,’ and you dismissed ‘gender discrimination’ as merely a–and I quote–‘perceived problem.'”
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Most of the Democrats used their handful of minutes to lay the foundation for their questions to come rather than to define Roberts as a poor choice. Senator Chuck Schumer, a New York Democrat, came close to accusing Roberts of being an ideologue but said that would be determined by how–and whether–Roberts answers Schumer’s queries: “If you refuse to talk about already decided cases, the burden is on you…to figure out a way, in plain English, to help us determine whether you will be a conservative–but mainstream conservative–chief justice, or an ideologue….You told me that you are not an ideologue and that you share my ‘aversion’ to ideologues; yet you have been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue [an antiabortion outfit]. That gives rise to a question. What do they know that we don’t know?”
The problem, said a former Democratic Senate aide, “is that Democrats feel responsible and actually want to get more information before expressing a position, and the Republicans have already made up their minds.” But that’s only a partial (if not self-serving) explanation. By all accounts, most Democratic senators have already made a decision on the preexisting record–the slate is not blank–and most have concluded that Roberts ought not to be confirmed. So why worry and speechify about all the process stuff instead of the main point? “The Democrats want to come out, talk about their ideals and look affirmative and not appear defensive,” one leader of the Roberts opposition told me. “Some were even mad at Biden for so clearly saying that he found Roberts wanting.”
With Republicans in lockstep on message–Roberts is a great pick and nominees should not be pushed too hard–the Democrats were establishing a hard task for themselves: beat the GOPers on the process fight (which few Americans give a damn about) and then trying to deploy strategic questions that will yield answers–or non-answers–that demonstrate Roberts warrants opposition. Why not frame the real debate–or attempt to do so–from the get-go? Would that be too confrontational for them? Not sufficiently senatorial? In any event, it was a miscalculation. True, the game was over before it began. But it seemed that the Democrats lost the chance to fight the best fight possible.
The Democrats cannot stop Roberts. Consequently, they can only have one political objective: to boost the number of no votes. This would allow them to claim their party is the one that cares about privacy rights. Moreover, a large no vote would signal the White House that the Democrats might be able to rough up–perhaps even stop–Bush’s next Supreme Court pick if that nominee is a rightwing extremist (to use the term of choice). Bush, as is his way, probably would not pay much heed to such a signal. But the Democrats at least have to try–especially since their base supporters expect them to do all that is possible to beat back Bush’s effort to steer the federal judiciary to the right.
As he kicked off the hearings, Specter said, “Now we face the biggest challenge of the year–and perhaps the biggest challenge of the decade.” If only. With the Senate Republicans in love with Roberts and opposed to any serious grilling, there’s not much challenge at hand. When the Democrats hurl tough questions at Roberts on Tuesday (and maybe Wednesday), it will only be for the record. In his opening statement, Specter noted that Roberts once wrote a memo in which he suggested that a justice’s tenure should be limited to 15 years, given that life expectancy had become much longer than when the Constitution was drafted. Specter said he might question Roberts about this. Lets hope so. It seems a good time to consider that proposal.