Thursday, September 15, 2005


For the last two days, using a modified version of the Ginsburg precedent, John Roberts has evaded question after question probing his feelings about key decisions of the Supreme Court. I don’t think many critics really expected Roberts to be any more forthcoming than he was. He had two things working for him: First, the vague and broad privilege of refusing to answer any questions with which he did not feel comfortable, and Second, the ability to dance intellectual rings around most of the Senators questioning him, especially on the topic of the law.

Predictably, the Republican senators were mostly deferential to Roberts when he told them that he couldn’t answer a question. But from what I heard, even Democratic senators didn’t push that hard when Roberts dodged questions. Admittedly, I missed most of the end of the second round of questions. The best challenge to Roberts’s evasiveness, at least the best challenge I heard, came from Charles Schumer (D-NY). Rather than simply stomping his feet, Schumer attacked the logic behind Roberts’s “pragmatic approach” to questions.

Repeatedly, Roberts told the committee that he was unwilling to betray his thinking on certain cases whose issues might come before the court again, saying that he wanted to approach such cases with a clear head and no recorded bias that might influence his decisions or the legal strategies of the parties involved. But Schumer noted that as a law student, as a clerk, as a young lawyer in the solicitor general’s office, and as a circuit court judge, Roberts espoused all kinds of opinions on the law. And Schumer noted that as soon as he is confirmed, Roberts will go back to voicing opinions on the law. The irony Schumer pointed out is that Roberts could and did give his opinion at every point in his career expect the two day period during which he was being evaluated. Schumer then asked Roberts if he knew of any judges who had to recuse themselves from cases because of comments they made at their confirmation hearings. Roberts never answered.

Apart from the “bias” argument, which Schumer dismantled to no avail, Roberts frequently resorted to claiming that the confirmation hearing was not a political negotiation in which he’d agree to take certain judicial stances in exchange for the senators’ confirmation votes. On its face, I agree with Roberts’s statement that the confirmation hearing should not be about political promise making, but that fact doesn’t justify every single refusal to answer questions about legal decisions. If we accept that one of the purposes of the hearing is to suss out a nominee’s judicial philosophy, it follows that having the nominee expound upon legal decisions is a good way of doing so. Considering that every case is decided on the basis of its “facts,” as Roberts repeatedly indicated, a nominee should be able to talk generally about the facts and reasoning of past cases without tipping his hand for all future decisions.

I’ll be very interested to see what Roberts looks like once he’s on the court. Although at that point, it will be too late for Democrats to oppose him in any real sense. In the meantime, Roberts has taken a page from the Bush playbook: when the facts might look bad, just keep them secret.

--Matthew McCoy