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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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    Re: Roberts Dances Gracefully (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:03:51 PM EST
    Has Biden already caved? Another roll of the dice would be after confirmation. Roberts is oleaginous preppy Republican, a most appropriate term jurassicpork has coined. Ultimately it is always a roll of the dice but a roll thrown after evaluating pertinent documents that have been requested, and having all questions answered.
    .... but there is also little reason to squander political resources on a filibuster that would more appropriately be mounted against an extremely conservative nominee...
    Squandering what resources? Is the right to filibuster only supposed to be used once. It is the only resource that the minority has after Sen. Hatch removed the other three softer measures. Roberts is an ultra conservative, a stealth nominee. The stonewalling WH needs to be given the only available antidote: a filibuster. There is no reason to give an inch here on someone who will be given so much power for the next thirty + years. Filibustering need not be a scarce commodity when faced with a less than frank nominee and a stonewalling WH, and no other options.

    Re: Roberts Dances Gracefully (none / 0) (#6)
    by veloer on Sat Dec 17, 2005 at 01:03:51 PM EST
    There is no reason for even one Democratic Senator to vote for Roberts. When Roberts turns out to be just another right wing nutjob maybe there will be some Democrats willing to "remind" the country just what the Rebublicans have wrought.

    Re: Roberts Dances Gracefully (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:52 PM EST
    After the circus Democrats created around the Bork and Thomas hearings, I don't know why you're surprised. Your side created the current rule structure, and now you're unhappy to see it.

    Re: Roberts Dances Gracefully (none / 0) (#2)
    by scarshapedstar on Sat Dec 17, 2005 at 01:03:52 PM EST
    Which do you prefer, JR: "roll over" or "play dead"? Everyone knows this guy has opinions and to pretend otherwise is childish. You guys control Congress and will confirm him even he he sacrifices a goat on the Senate floor. Why not just have some honesty for once in the Bush administration and tell people what he really believes? I think a better explanation than Borkaphobia is that you simply know his opinions are not shared by the majority of the American public and this is a childish attempt to somehow pretend that isn't the case.

    Re: Roberts Dances Gracefully (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:52 PM EST
    What little I saw of his testimony struck me as correct. Should a potential Supreme Court Justice use his views to pander for votes like a politician? I thought most of the questions asked placed him in a position to decide cases in advance of argument for the purposes of gaining votes. Not right.

    Re: Roberts Dances Gracefully (none / 0) (#5)
    by TChris on Sat Dec 17, 2005 at 01:03:52 PM EST
    The resources I have in mind are public trust and energy. A reasonable case can be made for a Roberts filibuster, but it doesn't seem likely to me that a large part of the public would support it. Many people will have trouble worrying about a conservative judge replacing a conservative judge. I'm more worried about the replacement for Justice O'Connor's seat, and I think it will be easier to find public support for a filibuster if an extreme conservative is nominated to replace a moderate conservative. As for energy, I don't believe Democrats could sustain twin filibusters indefinitely. At least one filibuster is likely to break before the president does. And even if he gives up on one, he's likely to send a replacement who is equally unacceptable, and Democrats will be burning up their energy for months on two filibusters when they have so many other issues they should be spotlighting -- issues that should minimize Republican representation in Congress after the next election.

    Re: Roberts Dances Gracefully (none / 0) (#7)
    by squeaky on Sat Dec 17, 2005 at 01:03:52 PM EST
    Well then it looks like Bush can do whatever he wants to do until the next elections, and maybe long after that, with the royal family and all. The democrats had agreed to use filibuster only in extreme situations for SC nominees and not for lower court judges as long as Bush would not make recess appointments. Bush made appointed activist judges to the lower court and made recess appointments. Roberts is a political operative; he is extremely supportive the executive branch. Giving him a pass would also establish that the president can brazenly say no to any of congress' demands. He will have his way with O'Conner's seat for sure now. The public will not be supportive of the next fillabuster either and the dems will cave for fear of being unpopular and losing their seats.

    Re: Roberts Dances Gracefully (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:52 PM EST
    Yeah and everyone said Bush was a moderate back in 1999 and 2000.

    Re: Roberts Dances Gracefully (none / 0) (#9)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:54 PM EST
    Squeaky - please show me which questions Roberts danced around that Ginsberg gave full answers to. The bottom line is, you won't find any.

    Re: Roberts Dances Gracefully (none / 0) (#10)
    by squeaky on Sat Dec 17, 2005 at 01:03:55 PM EST
    JR- and you show me one document that the senate demanded requested furing the Ginzberg nomination that it did not get.

    Re: Roberts Dances Gracefully (none / 0) (#11)
    by glanton on Sat Dec 17, 2005 at 01:03:55 PM EST
    JR: Ginsburg fully answered questions about Roe and you know it. She stated, unequivocally, where she stood and pledged not to undermine it once on the bench. You know this, everyone knows it. So there's your example. But then, you should be happy Roberts both evaded AND lied to Senators when it came to women's right to choose. Only by sheer stealth and duplicity, after all, could you ever successfully re-establish Victorian-style rules and laws.

    Re: Roberts Dances Gracefully (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:55 PM EST
    Glanton, Now what are going to say later when, as all folk listening to what he says say, he doesn't overturn Roe? An Emily Latella quote would be good. What does it matter what he answered? If he said he loved Roe you would have called him a liar and opposed him. If he said he was for it you would have opposed him. You would opposed any Bush nominee wouldn't you? And to overturn BTW would require both of these nominees (or was Renquist in the minority of the 6-3 split on abortion up to now)

    Re: Roberts Dances Gracefully (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:56 PM EST
    Squeaky: "JR- and you show me one document that the senate demanded requested furing the Ginzberg nomination that it did not get." Ginsberg never worked in the executive branch. There's a separation of powers issue here which you wnat to ignore (until a Democrat gets elected, at which point you'll suddenly remember it). Have a look at her biography - all government service has been in the judicial branch. As to her responses to questioning, she asserted that she believed that there is a right to privacy (which Roberts did as well).

    Re: Roberts Dances Gracefully (none / 0) (#14)
    by glanton on Sat Dec 17, 2005 at 01:03:56 PM EST
    JCH: No, as much as I dislike Bush I would not oppose any nominee. I was relieved, too, that Roberts did say he would respect the 'old' Conneticut ruling protecting the use of contraceptives (at least he's not Tom Coburn!)--a ruling, by the way, upon which both Roe and Lawrence were founded. And I would support a Bush nominee who unequivocally recognized women's right to choose, Lawrence v Texas, things like that. A free country for all, JCH, even in the face of temporal trends and mob passions and 2% majorities. And BTW, puhleeeze. I respect you a goodly deal but let's not pretend there's ambiguity here, with Roberts' stance on abortion or gay rights either. You know as well as I do that Roberts lied to Feinstein when he testified he had not spoken about abortion at all with anyone in the White House. JR: No, Ginsburg stated her support for Roe in no uncertain terms, and promised her committment to the fundamental rights that ruling articulated. That is your example. Stop dancing, it's not like you're the one being confirmed. :-O

    Re: Roberts Dances Gracefully (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:56 PM EST
    Glanton, Do I? I find the only way I can operate in the world is to take people at face value (until of course they are proven guilty). Robert's answer to the Congress ("A judge can not bargain for votes with his positions like a politician") is absolutely true. I sincerely hope he really means it. Do I believe he said the same when Bush vetted him? Why not? I cannot prove that this is some political ploy rather than a closely held view. Judge Roberts has been very highly recommended to President Bush by people Bush respects. Is that enough? Does Bush require an abortion litmus test? I would actually be as likely to believe that for all the lip service that the Republican Party is not ready to have Roe overturned. It would mean that every state legislative seat in every state would be vetted on abortion for the foreseeable future as the struggle to put abortion laws on the books (and keep them off) moved to every state in every legislative session for the foreseeable future. This could turn into the ONLY political issue in the country. With a nearly 50-50 split in the population on this issue - would that or would that not help the Republican Party? The polls on overturning Roe (vs peoples convictions on abortion) side heavily with leaving Roe in place (60-65%). President Bush does some stupid things but does he REALLY want Roe overturned? Does the Republican Party? It would make the current political struggles on the issue seem like a minor warmup to the big show.

    Re: Roberts Dances Gracefully (none / 0) (#16)
    by squeaky on Sat Dec 17, 2005 at 01:03:56 PM EST
    JR-There is no separation of powers issue here. It is a bogus attorney client privilege at issue. Ironically Clinton argued the same and lost. The Attorney general works for the people of america. Which is why Bush, Cheney and presumedly many other WH officials had to hire their own lawyers in the wake of Fitzgerald's Plame investigation. So show me any documents that were refused to the senate in the Ginzberg nomination.

    Re: Roberts Dances Gracefully (none / 0) (#17)
    by glanton on Sat Dec 17, 2005 at 01:03:56 PM EST
    JCH: On the surface, there is a lot of sense to what you say; one would indeed wonder if the GOP doesn't actually benefit more with abortion rights in place, as that issue alone draws a lot of voters who might otherwise vote the other way. I know several people whose fellow church members include many who proclaim in Sunday School (or even from the pulpit) that a vote for the Democrats was a mortal sin. Etc. So people who might otherwise be worried about their lack of job opportunities, or the war in Iraq or this nation's general indifference to the poor, significant numbers of these nevertheless appear to be voting GOP based on abortion rights and, of course, gay rights. But these considerations are extremely surface oriented and presuppose that the GOP, which now controls all branches of federal government, has no agenda except to win. Even I'm not that cynical. They DO have an agenda and this is their time, they've got these two nominees and perhaps a third or even a fourth coming. OF COURSE the nominees are going to be reluctant to protect minorities, women, and the poor. As secretive and duplicitious as this Administration has been, to a degree far surpassing Nixon, it makes far more sense to assume Bush vetted Roberts on abortion and gay rights during the interview process. I'd lay my life that Roberts lied to Feinstein; frankly, given the nature of your criticism of Bush (largely on the grounds of his dishonesty), I am surprised that here you take him at his word. On what basis do you do that, praytell?

    Re: Roberts Dances Gracefully (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:56 PM EST
    Well first, I said nothing about taking President Bush at his word. I am taking Judge Roberts at his. President Bush would never come out and say he didn't care about Roe. I am the only evangelical I know stupid enough to do that So there is a lot of truth about what you say vis a vis abortion and evangelical Christians. It is difficult in my world to say I am opposed to Roe being overturned by the courts. It is much the same as you saying that you will take certain rights anyway you can get them - even by court action as opposed to the legislature. People do want abortion ended; and as much as they whine about judicial activism - they would take some more judicial activism to remove Roe. The Republican Party has a broader view than largely single issue abortion voters. It is one thing to play to that crowd - it is another to base your political future on them. Republicans are in control, at least at the federal level and at least in a sense. They, for instance, could not pass a federal law outlawing abortion even if Roe was overturned - there are simply too many pro-choice Republicans; or at least Republicans who would be committing political suicide in their home states if they passed such a law. How many Red and Blue states would change color in the midst of a state by state battle over state abortion laws. Do they have control there? Two hair-raising elections do not indicate an ability to ignore the feelings of close to 2/3 of the country on overturning Roe. I actually think Roe being overturned would be political suicide for the Republican Party. Certainly, I do not think the Pro-life vote can be counted on to save them without clear and major progress in Iraq; and a sense that they are going to really do what should have happened after 9/11 and reorganize our national emergency response. Regretfully for them, clear progress in Iraq is almost completely in the hands of the Iraqis. I think overturning Roe might actually almost realign American politics into the Prochoice and Prolife Parties - perhaps destroying the Republicans and Democratic Parties as we know them today. If I was George Bush I would not nominate a justice that would overturn Roe. Unless Roberts is being completely misread by every political analyst I have read - he will not overturn Roe. However, I am not President Bush Oh, and I lived through Nixon - I am not sure President Bush wins the "liar" competition. I actually think President Bush has some issues that are truly central to his being - Nixon was just about the power.

    Re: Roberts Dances Gracefully (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:56 PM EST
    Oh, and overturning Roe would not end abortion. I predict it might cut them in half (but probably not that).

    Re: Roberts Dances Gracefully (none / 0) (#20)
    by glanton on Sat Dec 17, 2005 at 01:03:57 PM EST
    JC: That's an excellent analysis of what would/will happen in the event that Roe is overturned. Certainly this would result in lots of trouble for the GOP, not only for the many reasons you lay out, but also in view of those millions of people who out of complacency/cynicism never bother to vote at all--something as tangible and as polar as overturning that decision might, for instance, wake up a lot of politically apathetic women, thus FINALLY enabling those past menopause to pass the torch to their younger, complacent heirs. But I think the mosty telling part of your post occurs at the end, when you opine that you: " actually think President Bush has some issues that are truly central to his being." I agree with this wholeheartedly, and we have every reason on earth to believe that these issues include extreme antipathy to gay rights and a desire to pave the way for criminalized abortions. My take on American politics at this time is that when the GOP finally loses its grip on the mantle, it will not be because of anything the Democrats have actually done--the latter have proven themselves incapable of fighting for elections the way they need to be fought for. No, it will happen when the overp;lay their hand to such an extent that they and their social agenda are irrevocably unmasked, so irrevocably in fact that even libertarians will figure out that 2+2=4. I submit that Shiavo was a preview of this: look at the immediate public backlash against Delay, Santorum, etc. When Roberts and Jurist X join Scalia and Thomas, they will be one vote away from overturning Roe, and with just a little pressure on Anthony Kennedy, it's a done deal. And that's even if Stevens or Ginsburg don't knife us all in the back by dying or retiring before this guy's term is (hopefully, anyway) over at last. I've been saying all along that this overturn will help Democrats, but then I would rather not pay that price. I would rather not have my wife and I become lawbreaker, facilitators of underground railroads to get poor young women out of Texas, Alabama, etc.-- risking money and liberty for something that ought to be freely available. But then, what I'd rather have and fifty-one dollars won't do much more than fill up my four cylinder Saturn these days. Peace.

    Re: Roberts Dances Gracefully (none / 0) (#21)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:03:58 PM EST
    Well, I think he will be confirmed so we will find out. I think it is a real stretch to make Roberts anti-gay since he participated in a pro-bono case on behalf of gay rights in Colorado. He has stressed that as an attorney he was a Supreme Court specialist hired gun going to the first request. That may sound good to the Santorum's of the world - but if he had any animosity he would have passed. Period. It will be interesting.

    Re: Roberts Dances Gracefully (none / 0) (#22)
    by squeaky on Sat Dec 17, 2005 at 01:03:58 PM EST
    Roberts anti-gay? He is gay, closeted-gay that is. Those guys are the scariest.

    Re: Roberts Dances Gracefully (none / 0) (#23)
    by glanton on Sat Dec 17, 2005 at 01:03:58 PM EST
    Squeaky, did you watch Real Time last night by any chance? Maher was sying the same thing you are: he held up this picture of Roberts and these two dudes from the 80's, and the three men are posing with a plate of food. "Straight men," Maher observed, "don't pose with food!" Fun stuff.

    Re: Roberts Dances Gracefully (none / 0) (#24)
    by squeaky on Sat Dec 17, 2005 at 01:03:58 PM EST
    glanton-Didn't catch it. I don't have a TV and have only read about Maher (never seen him) who seems quite the wild one and very funny. He is not out to make friends though: "But I've often said that if I had I have two dogs if I had two retarded children, I'd be a hero. And yet the dogs, which are pretty much the same thing. What? They're sweet. They're loving. They're kind, but they don't mentally advance at all... Dogs are like retarded children." Bill Maher, Politically Incorrect (2002)

    Re: Roberts Dances Gracefully (none / 0) (#25)
    by glanton on Sat Dec 17, 2005 at 01:03:58 PM EST
    I envy you for not being spellbound by the television. I think that maybe I'd be able to do it, too, if it weren't for my incurable sports addiction. Ah, well, we all have our weaknesses!

    Re: Roberts Dances Gracefully (none / 0) (#26)
    by squeaky on Sat Dec 17, 2005 at 01:03:58 PM EST
    Glanton-I am susceptible to becoming spellbound and have been there, but it never added up to anything for me but a massive waste of time. The material was so bad that I would watch several shows at the same time constantly changing channels. I chucked the set out the window. I am not a sports fan.