Roberts Dances Gracefully
by TChris
As this report notes, John Roberts answered few substantive questions during his confirmation hearings. This is standard practice in post-Bork hearings, and Roberts, who has coached other judicial candidates in the art of the non-answer, was careful to say nothing that could stir controversy.
"We're rolling the dice with you, judge," Biden said, "because you won't share your views with us. You've told me nothing in this Kabuki dance. The public has a right to know what you think."
"You've being less forthcoming with this Committee than any nominee who has ever come before us," said New York Democratic Senator Charles Schumer. "This process is getting more and more absurd," he added.
When he did venture an opinion, Judge Roberts tried to satisfy everyone (or, at least, to offend no one). As Emily Bazelon observes, Judge Roberts opined that justices who voted to replace Plessy (separate but equal is consistent with equal protection) with Brown (racial segregation violates equal protection) were not overreaching activists (placating the left) but were actually giving effect to the original intent of the Fourteenth Amendment (placating the right).
When asked about reliance on the decisions of foreign courts, Judge Roberts indicated that U.S. courts shouldn't consider themselves bound by foreign precedent. That answer appeals to isolationists on the right, but isn't terribly upsetting to anyone else, since we all know that foreign court decisions aren't binding on U.S. courts. Whether they should be cited (for instance) as reflecting an evolving international standard of decency in death penalty cases is a separate question that Judge Roberts nicely sidestepped.
Here's the result of the Kabuki dance, according to Sen. Biden:
"You have managed to convince Sen. Brownback that you're on his side, and you have managed to convince Sen. Kennedy you're on his side."
And that's exactly what Judge Roberts hoped to accomplish.
How, then, to evaluate Judge Roberts? Prof. Kermit Roosevelt makes the case that "some interesting tidbits have slipped out" which signal that Roberts is "a relatively moderate and restrained judge, not someone who would seek to work radical changes in the Court’s jurisprudence." Unlike judges of the far right, Judge Roberts believes a right to privacy is explicitly protected by the due process guarantee of liberty. He claims to respect precedent (but what judge would say otherwise?), and may therefore be reluctant to vote to overturn Roe v. Wade, although he might also be inclined to allow states to impose onerous restrictions on abortion rights. And he seems to accept the notion that the Constitution is a living document, not a dead thing that must be interpreted as if we all lived in 1789:
It has always been clear that Roberts is not an originalist, but he seemed willing to distance himself emphatically, if implicitly, from Scalia and Thomas. In the course of his discussion of substantive due process, Roberts endorsed the approach of the late Justice [John Marshall?] Harlan (which would align him with Justice David Souter on the current Court) and stated, “I agree that the tradition of liberty is a living thing, yes.”
Still, the best we can say is that Chief Justice Roberts would not likely be worse, and might possibly be a bit better, than Chief Justice Rehnquist. But that, at best, is a guess. As Biden said, we're rolling the dice with Roberts.
Judge Roberts has offered little reason for Democrats to vote in his favor, but there is also little reason to squander political resources on a filibuster that would more appropriately be mounted against an extremely conservative nominee for the moderately conservative Justice O'Connor's seat -- which, as suggested here, is what might be coming next.
Update: Howard Dean has this to say about Roberts' confirmation.
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