Before the John Roberts confirmation hearings began, progressive opponents of Bush’s pick to be chief justice were fretting that the media attention given to the Katrina mess would prevent Democrats from using the hearings to make a public case against Roberts. Now I’m thinking that maybe–in a way–it was good that the public is not seeing much of the Roberts hearings. The Democrats have not succeeded in depicting him as a danger to Americans. As I previously wrote, most of the Democratic members of the judiciary committee spent the first day of the hearings–the warm-up day–fixating on process questions, such as whether they had the right to ask Roberts questions about his views. (See the post below.) Day 2 was the supposed to be the main attraction: question time for Roberts. And it came as no surprise that a fellow who has argued dozens of cases before the Supreme Court was able to deftly handle the queries from the Dems. That’s not to say that he always was right in his answers or bested his interrogator on debate points. But the Democrats landed few blows. They can huff that he did not answer questions about Roe while he did about Brown v. Board of Education. But Roberts–as was his mission–provided them little ammunition. He displayed a gentle and thoughtful manner. And appearances do matter. (Just ask Robert Bork if he wishes he had shaved off his less-than-stylish beard.) Roberts sounded reasonable, as he ducked critical matters or parried with Democrats.
Right off, Republican Senator Arlen Specter, the chairman of the committee, led Roberts through the critical issue of the hearings. He asked Roberts about Roe and the principle of stare decisis. Roberts quoted James Hamilton in the Federalist Papers that judges need to be “bound down by rules and precedents.” He said all the right things about the importance of precedent and the value of stare decisis. He noted that precedent can only be overturned in limited cases. But he would not talk specifically about Roe, noting he feels “the need to stay away from the discussion of specific cases.” Specter several times described Roe as well-established precedent, calling it a “super-duper” precedent. Roberts thoughtfully discussed the abstract notion of precedent. But he said nothing about how stare decisis might be applied to future cases involving abortion rights. This duet produced rhetoric useful to each participant. Specter trumpeted his support for abortion rights and argued that Roe should not be overturned. Roberts praised precedent as a guiding but not inviolable principle without making any commitments to protect Roe.
Then various Democrats took their turns. Senator Pat Leahy tussled with Roberts about a decades-old memo in which he seemed to suggest presidents–not Congress–can decide whether to wage war. Roberts claimed–politely–that Leahy was “vastly over-reading” the memo and added that he merely had been representing the position of his boss at the time, the president. Senator Ted Kennedy challenged Roberts on positions he had taken–or represented–on civil rights law when he worked for the Reagan administration. Roberts revived arguments the Reaganites had used to oppose certain remedies for discrimination. This produced much spirited much back and forth over legal matters years old. That’s not to say this stuff is not important. But I doubt the debate over the Grove City decision would resonate with a general audience. Under the questioning of Senator Joseph Biden and other Democrats, Roberts did say that the Constitution contained a right to privacy. But he would not say whether such a right covered abortion. Biden cornered Roberts once or twice–but not in any fashion that would matter much beyond the committee room.
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Senator Russell Feingold inquired about an ethics matter. In April, Roberts, an appellate court judge, heard a case involving the Bush administration six days after he was interviewed by administration officials for a possible Supreme Court vacancy. Feingold asked why did he not recuse himself. Roberts refused to explain. At the hearings, Roberts opponents were telling reporters that Senator Dianne Feinstein was likely to cause the biggest sparks of the day by questioning Roberts on Roe. But she fared no better. As she pressed him, he continued to bob and weave in his artful and unflappable manner. At the end of the day, the Democrats had extracted little of political use. The Democratic Party did issue a press release headlined: “Roberts Watch–Day Two: A Day of Evasion, Obstruction and Distortion.” Its examples were not unconvincing. But neither were they likely to change the course of the nomination.
There was probably not much the Democrats could have done. Roberts is a smart, savvy, and smooth attorney. The legal issues at hand do not translate well into soundbites. But I wonder what might have happened had one Democratic senator taken a less conventional approach to the legalistic questioning. Imagine if Feinstein had asked Roberts: “You indicated that Brown v. Board of Education was decided correctly. Would you tell us if you believe Roe v. Wade was decided correctly?” Roberts would have ducked and dodged, of course. But what if she asked the question again. Maybe once more. Then looked at the clock and said, “I have 28 minutes left. I am going to wait all that time for an answer because I think Americans should know whether the next chief justice of Supreme Court believes abortion rights ought to be protected or not.” And then stared at him for 28 minutes. Would that have been a galvanizing moment? Who knows? But it sure would have made the point more strongly than any of the exchanges that occurred.
Good news on Roberts? In Tuesday’s Washington Post, reporter Chuck Lane writes about a study compiled by a professor who studied all of Roberts’ decisions in his two-year stint as a federal appeals court judge and found that he was four times more conservative than the average appeals court judge on civil rights and civil liberties cases, about average on criminal justice cases, and sort of liberal on cases involving economic and labor matters. Kenneth Manning, the University of Massachusetts professor who did this study, said, “The general read I got was of a non-activist stance–a general reluctance to go out of his way and rule against government regulators. If the EPA ruled against the chemical industry, the general tendency was to defer to the agency.” I don’t vouch for this study. But maybe Roberts is not as awful-awful as his foes fear. In any event, given how the hearings are going, wishing is a reasonable exercise.