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Rules of the game: how Democratic senators will try to trip John Roberts up
National Review, Sept 12, 2005 by Shannen W. Coffin
JOHN ROBERTS's Senate confirmation hearings are set to begin on September 6. They could be a useful opportunity for exploration of the character and qualifications of President Bush's first nominee to the Supreme Court; more likely they will be a grandstanding political ping-pong match with Roberts serving as the ball. When the Washington Post reported recently that Roberts's confirmation was all but assured, liberal Vermont senator Patrick Leahy stepped in within hours to douse any talk of inevitability; he characterized Roberts as an "eager and aggressive advocate" for the extreme Right.
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Most of the Democrats' pit bulls on the Senate Judiciary Committee will begin any discussion about Roberts with the admission that he has impressive credentials. New York's Chuck Schumer conceded that Roberts is an "impressive, accomplished, and brilliant lawyer," who "appears to be a decent and honorable man," with a "remarkable resume"--but that, Schumer reported, "by itself, is not enough to get my vote." So what is enough? According to Schumer, it is the assurance that John Roberts fits within the "broad mainstream." But Chuck Schumer's definition of mainstream probably differs a bit from, say, Ronald Reagan's, so his statement does not tell us much. His colleague, California's Barbara Boxer, is a little less opaque about the subject, stating unequivocally that she will vote against Roberts unless he vows to uphold the right to abortion created by Roe v. Wade and threatening to grind the nomination process to a halt unless Roberts answers her questions on Roe.
For the Left, then, the confirmation process is a political grilling to pin Roberts down on their favorite issues-a procedure to which Texas senator John Cornyn, a Judiciary Committee Republican, objects: "It's critical to remember that a Supreme Court nominee is not running for political office. And it would be wrong to ask him to make promises to politicians."
A senator certainly has a right to ask any question in the hearing, but Roberts has an equal right not to answer. As Delaware Democrat Joseph Biden (then chairman of the Judiciary Committee) told Ruth Bader Ginsburg during her confirmation hearings, nominees "not only have a right to choose what you will answer and not answer, but ... you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court."
Senators should not--and do not--seriously expect Roberts to answer specific questions about, for example, whether he would vote to overrule Roe or strike down the Pledge of Allegiance. David Souter repeatedly declined to answer questions regarding Roe during his own confirmation hearings. Ginsburg declined to answer specific questions on a whole host of matters--including the death penalty and school vouchers-that might one day come before her on the Court. Her position that answering such questions would compromise her ability to judge those issues fairly as a justice has established the gold standard for future nominees facing confirmation hearings. Expect to hear her name invoked, and rightfully so, many a time in the Roberts hearings.
Knowing that they will not achieve much by asking direct questions about the nominee's views--except, perhaps, scoring a few points with their base--Democratic senators will interrogate Roberts on "judicial philosophy." But these questions will be little more than indirect ways to trap the nominee where the questioner knows a frontal assault will fail.
Just a sampling of these questions belies the notion that they are anything more than a political litmus test for Roberts. Because the Court has trended in their direction on many politically charged issues, a favorite stalking horse for Democrats will be Roberts's views on the role of "stare decisis," or the degree to which prior decisions of the Court are inviolable, whether rightly decided or not. As Justice Scalia has described stare decisis, "[Its] whole function ... is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability." Stare decisis was the crutch upon which the Court leaned in upholding Roe (albeit in a drastically revised form) in the 1992 Planned Parenthood v. Casey decision. Left without a substantive justification for preserving abortion rights as a constitutional matter, five justices fell back on the need for stability in the law.
So stare decisis is simply a senator's Latin term for: "What about abortion rights, gay rights, and the other judge-made constitutional rights we hold so dear?" People for the American Way listed stare decisis as question number one on its list of 20 for a nominee, stating that "the American public deserves to know Roberts's views on the rights and legal protections we currently enjoy." Taking that cue, Democrats on the committee will demand nothing short of strict adherence to Roe and similar decisions that have so polarized the electorate. (Ironically, the current Court cast aside any concerns about precedent in creating many of the rights that the Left now celebrates, such as the right to homosexual sodomy declared in Lawrence v. Texas. Lawrence overruled the very recent--1986--decision in Bowers v. Hardwick.)
