Roberts: A Good Lawyer Can Argue Just About Anything

Time for another confession:

I was a debater in college.* I spent pretty much every weekend at different universities, verbally abusing my peers. Parliamentary style. Please don't laugh. O.K., go ahead and laugh, but please, no rolling around on the floor. It's not that lame.

The parliamentary debate format often requires participants to argue for a position they oppose or against a position they favor, and the best debaters can do this with strong logic and lots of passion. In practice, so can most skilled lawyers -- which is why it's not that difficult for me to believe that John G. Roberts's early writings aren't necessarily the best litmus test for his beliefs.

As a lawyer working for the conservative Reagan administration, it would not be surprising if he tailored his memos to the stances of those for whom he was writing. Is it possible that he really did firmly believe in every word he wrote while working in the White House? Sure. But his personal views simply cannot be divined from those writings alone.

Even non-debaters know this, which is why there is such a desire to determine where Judge Roberts -- not Lawyer Roberts -- really comes down on the big issues of the day. Over the course of the hearings so far, Roberts has touched on several of these issues, including abortion, privacy rights and executive privilege. (Excellent analysis on these matters in today's Post editorial.) To no one's great surprise, his answer on abortion satisfied neither side.

The leader of the pro-life group Operation: Rescue was quoted (in an earlier version of this Associated Press story) as saying, "We're concerned about these statements," while the president of NARAL Pro-Choice America faulted the nominee for not specifically stating "whether he believes the right to privacy includes a woman's right to choose as recognized in Roe v. Wade."

What are the political ramifications of all this? Well, things got somewhat heated Tuesday and Wednesday, but we're talking the Easy Bake Oven type of heat, not the roasting-on-a-spit-over-an-open-fire kind of heat. We'll hear a lot from the Democrats about how Roberts is dodging their questions, but is it really fair to expect a judicial nominee to categorically state his opinions on specific issues before he's ruled on them? When those issues do come before him, either he'll be backed into a corner and rule the way he said he would, or the facts and precedents involved in the case will change his mind about the issue, he'll rule the other way, and it won't have mattered in the slightest what he said during his confirmation hearings. What's more important is how the nominee feels about precedent (he was pretty clear on that) and whether he can be counted on to consider a case on its merits.

Roberts likens himself to an umpire in baseball. But as Sen. Herb Kohl notes, two umpires can call the same game entirely differently. There are different strike zones, if you will. (Anyone who watched the Orioles-Rangers game Tuesday would know what I mean -- at times it seemed like the home plate umpire's strike zone reached half way to first base. But, to his credit, he applied it evenly to both teams.)

In college debate, the worst kind of judge was the one who made up his or her mind about the case as soon as the topic was announced. Sure, judges have their own criteria for deciding who won -- some put more emphasis on logic, others on the emotional intensity of the speeches, still others on which side made the most pragmatic arguments. We debaters might not always agree with a particular judge's criteria, but as long as the criteria are reasonable, then the decision is legitimate.

It seems that, in spite of the complaints from the right about inappropriate questions and from the left about unspecific answers, Democrats and Republicans alike actually are getting to know this nominee. Interest groups on both ends of the political spectrum are disappointed that Roberts didn't come out strongly in support of their view. All that suggests is that he really could be a fine justice.

*Does my debate experience explain the title of the blog? Actually, no. The title was entirely my editor's idea.

By Emily Messner |  September 15, 2005; 5:45 AM ET  | Category:  Beltway Perspectives
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Comments

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Bush's people aren't stupid. I have this image of Roberts' hooked up to a lie detector machine while Bush Sr. shouts, "If every other seat was taken at the table, would you sit next to Souter? Would you?!"

It's hard not to respect him, but it's also hard to believe that the administration would have nominated him without intensive screening on his beliefs and actions. Time will tell if he's a fair judge.

Posted by: Tina A. | September 15, 2005 08:47 AM

To extend Emily's argument a little further, not only can good debaters argue anything, but good lawyers write expansive briefs. Briefs are a list of potential strategies for how to execute a plan to win a case. A common, very common tactic is to argue as strong a position as fervently as possible, with as many different reasons you can think of (As Groucho Marx once said, "I have morals! And if you don't like them... I have others.")
I agree with Roberts that it is unfair to accept his memos and briefs as his position. HOWEVER, I am ambivalent about his refusal to clear up many of his positions. If he wrote something in his memos and gave his word to the Senate that he had a different opinion, I would accept his word no under oath as more legitimate. Except on gender discrimination and term limits, however, he hasn't given us any words for him to keep. It wil be interesting to see whether or not the next nominee will have such a forceful defense. If not, these two hearings may be a reignition over the expectations the Senate should have for confirming Supreme Court nominees.

Posted by: Steven | September 15, 2005 01:16 PM

Does John Roberts even need good arguments to defend him? He can simply use his puppy dog eyes to beg for sympathy and get his way. Really, they're semi-hypnotic in nature. I think that's how he got Bush to nominate him.
Seriously, the guy's as white bread as they come. I sincerely doubt he is a stealth candidate, but is in fact just as moderate as he comes off as. Besides, Bush promoted him to protect rich interests, not conservative interests (although there's very little difference between the two). Roberts is just another rich white guy born and groomed to be handed the highest offices of power this country has; Par for the course, really. It makes perfect sense that a rich appointee such as Bush would nominate a rich appointee such as Roberts. I just hope Roberts gets to be chief justice by being voted in rather than a court decision giving the position to him, but I'm sure he'd find that acceptable to get him where he wants to be, much like Bush was more than happy to be handed the presidency in 2000.

Posted by: ErrinF | September 15, 2005 03:52 PM

Wow. There is very little debate here on 'The Debate' concerning John Roberts. Clearly, his confirmation is a non-issue, and too much space was set aside for it's discussion here. Maybe next time Emily should think an issue out before dedicating so much empty space to it.

Posted by: ErrinF | September 16, 2005 04:49 PM

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