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.”