Roberts: What Have We Learned?

We're two days from the vote on Roberts's confirmation, and in case it wasn't obvious enough before, it is now: Unless something really unlikely happens -- like kinky Polariods of Roberts turning up on the Drudge Report -- the confirmation is all sealed up.

Here's a quick review of some of the most contentious questions about Roberts's suitability for the role of Chief Justice.

Will Roberts be too permissive of presidential overreaching?
Law professors are split on this one. Prof. Yale Kamisar cautions Democrats not to assume Roberts's positions are fixed; a nominee's ideas about executive power can change the further away he gets from his time within the executive branch. Prof. Peter Shane and former FCC chairman Reed Hundt, writing in the Post, aren't convinced.

Where does Roberts stand on issues of civil rights?
Ann Marie Tallman, president of the Mexican American Legal Defense and Educational Fund, wrote in the Los Angeles Times (can't seem to find a link to the op-ed. Anyone?) and testified for the Roberts hearing about why she believes Roberts does not have a firm enough commitment to civil rights for Latinos, or any other Americans, for that matter. Peter Kirsanow, a member of the U.S. Commission on Civil Rights, argues that the attack on Roberts's civil rights record is not supported by the facts.

Does Roberts believe in a constitutionally guaranteed right to privacy?
Steve Chapman of the Chicago Tribune insists privacy rights (the underlying principle in the Roe v. Wade decision, among many others) are not endangered by Roberts; columnist Tom Teepan argues that they are.

What role will Roberts's religion play in his rulings?
When a couple of senators asked Roberts about this, their questions were met with immediate and shrill accusations from the right that an unconstitutional religious test was being imposed on the nominee. Tony Perkins, the evangelical who runs the ultra-conservative Family Research Council, cites this excerpt from the Constitution: "no religious test shall ever be required as a qualification to any office or public trust under the United States." Cathy Young counters in the Boston Globe with framers' intent: "The context makes it fairly clear what the original intent of this clause was," she writes. "An officeholder could not be required to take an oath or perform a religious ritual affirming his allegiance to a particular religion or denomination, or even a general belief in God." (Young's piece wins the argument on its merits; it is reasonable to want to know whether a jurist's religious convictions will cause him to make a ruling based on something other than the law; it would be unreasonable to force a jurist to commit to a particular religious belief as a condition of taking office.)

And the million-dollar question: What are Roberts's views on Roe v. Wade?
Charles Krauthammer writes that in the case of "Roe Vs. Roberts," the landmark abortion ruling is likely to come out relatively unscathed. John MacArthur, publisher of Harper's magazine, explains in the Providence Journal why he believes John Roberts presents a clear and present danger to abortion rights. Howard Lurie tries to make the case that the abortion issue, as important and complex as it is, has taken on too large a role in the judicial confirmation process.

Manuel Miranda, in the Opinion Journal, writes that the representatives of special interests groups on the left, in their testimonies at the hearing, sent the "simple message" that they opposed Roberts because he "might not decide cases in their favor." E.J. Dionne thinks it's not a matter of partisan disagreement. More is at stake, he argues, and a large number of Dems voting 'No' would "constitute a just demand for Roberts (and whoever Bush names next) to answer more questions in a more forthcoming way and for the administration to provide information that the public, and not just the Senate, deserves."

I'll post a quick update rounding up the commentary that follows the Senate vote.

By Emily Messner |  September 20, 2005; 2:00 PM ET  | Category:  Beltway Perspectives
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Your first question regarding whether Roberts will be too permissive regarding executive overreaching is a fascinating one. The trend of an increasing power in the executive branch has been dramatic in the last fifty years.

Personally, I find the idea of further empowering the executive abhorrent (though liberal, I have always refused to watch media like The West Wing and The Contender because I feel they promote the idea of President as demagogue) but I feel that much of the public would disagree. To me, that would be a truly interesting debate.

Posted by: Bob P. | September 20, 2005 06:45 PM

To me the most important question is how Roberts would rule on the interstate commerce clause. I don't understand why you didn't address this.

Posted by: Dellis | September 20, 2005 08:59 PM

Messner asks, Roberts,What have we learned?

At least that there can be no Fifth Amendment for any nominee to be a judge.

A candidate who refuses to provide an opinion on a decided case is essentially pleading the Fifth Amendment. He or she is refusing to answer on the basis that it may tend to incriminate the candidate, that is, expose a view that may cut their chances of confirmation. Judicial candidates who plead the Fifth, refuse to provide their opinion on significant decided cases are therefore not fit to serve on the bench.

It is exactly the opinion of the nominee on decided cases that must be the basis for a confirmation decision. Surely confirmation decision should not be based merely on suck-up hedging designed to disarm or placate Senators.

I was taught by law school professors that every case is ultimately unique. Despite even very similar conditions every decision is ultimately based on unique circumstances. The logic of a decision may well be, and should be, useful in a similar later case. But general comments in a decision are called gloss and are not law. This means that a candidate for the bench must be willing to provide his or her opinion on a decided case with no hypocritical, erroneous claim that it will prevent fresh evaluation of a later, if similar, case. And all understand that a nominee should not be asked to judge a pending case before it is tried.

What is infuriating in the current confirmation hearings is that Senators, the representatives of citizens, are not permitted to have information that the president has been given for his nomination decision.

But ultimately there is the crucial procedural issue or policy of bipartisan confirmation. The famous and most highly regarded analyst and writer on democracy in America, Alexis de Toqueville, wrote over a century ago on the hazards of government by simple majorities. He warned of the error in tendency to great power by a current majority, he even coined the phrase Tyranny of the Majority. This is basically why we have a Bill of Rights, why we do not allow bare jury majorities to convict criminal defendants and others, and why corporation boards commonly require more than a bare majority to make significant decisions.

In fact the Senate rarely confirms Justices by bare majority votes. For instance in 1981: Justice O'Connor confirmed 99-0; in 1988 Justice Kennedy confirmed 97-0; in 1990: Justice Souter confirmed 90-9; in 1993 Justice Ginsburg, confirmed 96-3; and 1994: Justice Breyer was confirmed 87-9. Justice Clarence Thomas was a rare and "awkward exception."

Surely it is good to have a very broad, bi-partisan confirmation of life-time appointments to our highest court.

And end the pompous denials of political relevance. Selection of high-level judges is, always has been, and always will be a largely political act. Scores of lawyers and judges are highly competent. Even the least qualified justices on the Supreme Court are no doubt far more competent than many other lawyers. But a president nominates a candidate whom he believes will tend to promote, to one degree or another, his own political, social, philosophical, and economic views.

Compromises between such views are inevitable as different priorities or emphasis between such views make a perfect fit most unlikely. But litmus tests are always present, despite all the required pious pronouncements and denials. The president always asks or has been given answers to the crucial litmus tests before he makes his choice.

What is infuriating in the current confirmation hearings is that Senators, the representatives of citizens, are not permitted to have information that the president has been given for his nomination decision.

As the Chair of the Judiciary Committee has said, in the delicate dance of confirmation, candidates will answer only as few questions as are required to gain confirmation. And an extremely skilled courtroom Esquire, like John Roberts, is capable of blowing off any question and at any length, certainly if it deals with questions not likely to come to trial. But it is exactly those questions that will likely come to trial in future cases that are the absolutely essential issue in evaluating a nominee.

John Roberts has had a very slim record of decisions as a judge, with barely two years on the Washington district Court of Appeals. However there are many pages of his memos and writings, some of which have been withheld from the Senate. In his career he has clearly chosen to work for or represent corporate interests and the governmental officials that represent their interests. This record appears impressively single-minded against Employment Discrimination laws, Voting Rights laws, School Desegregation, Immigrants' Rights, Women's Rights and Gender Discrimination, Discrimination in Education Laws, Reproductive Freedom and Privacy, Rights of the Disabled, and Environmental Protection. He may look like a nice young soap opera hero but history may not be so kind toward him or those who roll over for him.

Posted by: Bob K. Bogen | September 21, 2005 12:43 AM

I would urge all Democrats and thse Republicans who are no longer afraid of retaliation from this collapsing administration to vote against John Roberts. While it is true he is replacing a reactionary dinosaur, the fact he insists on keeeping us in suspense on his views with the aid of this most secretive administration says he will not change from the positions he supported as an advocate. His claim he was a subordinate doing what he was told simply does not wash.

Posted by: James R Coughlit | September 21, 2005 12:54 PM

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