After Two Days of Hearings on Supreme Court Nominee John Roberts, What Should Senate Democrats' Next Move Be?

By EDWARD LAZARUS

Thursday, Sep. 15, 2005

Based on the first two days of the Roberts hearings, Senate Democrats face three principled choices, none particularly attractive.

First, they could vote against Roberts, because the White House has refused to disclose Roberts' memoranda from his time in the Solicitor General's office, and because Roberts himself has refused to reveal his substantive views on subjects of tremendous importance. Senate Democrats could reason that these willful omissions leave them without the information necessary to make an informed decision about whether to confirm the nominee.

Second, they could vote against Roberts on ideological grounds, based on the scant record that does exist. This record suggests, for example, that Roberts may take a very strong states' rights view, one that might significantly curtail federal power, and also that he very likely favors the overruling of Roe v. Wade.

Or third, they could vote to confirm Roberts on the theory that he's better than the likely alternative. After all, Roberts appears, so far as it can be ascertained, to be very able, and to be deeply committed to the integrity of judicial decision-making. He also seems to be less doctrinaire than hard-line conservatives like Justices Antonin Scalia and Clarence Thomas - as well as some of the other nominees the President is said to have short-listed before naming Roberts.

Of course, in theory, a lot could change before the hearings end. In a fit of temporary insanity, Roberts might drop all the meaningless generalities about importance of stare decisis; admit that he thinks Roe v. Wade was wrongly decided; and confess that he would vote to overturn it, if he gets the chance. (Is there anyone who doesn't think this is his real view?).

But it is almost impossible to imagine that the remainder of the hearings will yield any such momentum-shifting revelation. So Democrats are going to be stuck with the dilemma of whether to vote to confirm a nominee who represents just about the best they could legitimately hope for from President Bush - despite the fact that to the extent they know the nominee's substantive views, they deeply disagree with them, and with the influence Roberts would likely have on the Court.

This is not a question with an easy or obvious answer. But all things considered, I think Democrats should vote to confirm - and then keep their fingers crossed.

So Far, The Senate Has Learned Little About Roberts' Beliefs From His Testimony

The most troubling aspect of the hearings so far, is their simple failure to shed significant light on the beliefs of the nominee.

Due in part to Hurricane Katrina, Democrats never built much momentum behind their demand for some of the internal memoranda Roberts wrote while Deputy Solicitor General in the first Bush Administration. For this reason, the written record on Roberts dates to the early to mid- 1980s, and is stale. For better or worse, the views Roberts held twenty years ago probably do not precisely reflect those he holds today or, at least, he can credibly suggest that they do not - and then refuse to divulge his actual views.

Compounding the problem, during the hearings, Democrats have done a miserable job challenging Roberts's policy of refusing to answer subsequent questions about past decisions. Roberts bases his refusal mainly on the idea that answering such questions might suggest that he was pre-judging issues that might come before him as a justice.

He has, moreover, carried the principle to an absurd extreme, refusing to discuss even Bush v. Gore, a case of surpassing importance and unique facts. There is, frankly, a vanishingly small chance that Roberts, if confirmed, would ever be asked to, in effect, decide another close Presidential election. So how will it improperly pre-judge future cases, for him to assess the Court's role in this one?

The Democrats Missed the Chance to Take a Principled Stand In Favor of Substance

As Vik Amar has noted in this space, the Democrats would be well within their rights to demand more answers from Roberts, not just on Bush v. Gore, but generally - and doing so would not, in fact, compromise Roberts' impartiality.

Asking a nominee about his view of historical cases simply is not the same as asking how he would rule on similar questions in the future. And as Amar points out, it would only be a nominee's promises to Senate - not his discussions of his views with Senators - that would violate the separation of powers.

And understanding a nominee's views about past cases would actually make a vote on confirmation an informed choice. Why would the Constitution have given the Senate a role in confirmation in the first place, if that role was not intended to be a substantive one.

Unfortunately, thought, it seems Democrats have surrendered the high ground on this point. And so there is little point in even contemplating voting against Roberts on this basis.

There Is Ample Reason for Democrats to Object to Roberts's Ideology

Turning to the Democrats' next option, the case for voting against Roberts on ideological grounds is pretty straightforward.

It runs basically as follows: We know that Roberts started his law career as a highly opinionated and deeply conservative rising star in the Reagan Administration. In that role, he wrote numerous memos trashing liberal positions on civil rights and women's rights, and even staked out positions to the right of arch-conservatives like Assistant Attorney General Brad Reynolds.

We know less about Roberts's personal views during his stint as Deputy Solicitor General in the first George H.W. Bush Administration. (As noted, the current Administration refuses to disclose any material from this period). But nothing from his time there suggests much movement from the brash ultraconservatism of Roberts's Reagan Administration service. To the contrary, while serving as the "political" deputy in the SG's office - that is, the deputy appointed specifically for his views on legal policy - Roberts co-authored many briefs staking out very conservative positions, including a brief calling for overturning Roe.

We also know that George W. Bush sees his appointments to the Supreme Court as a way both to reward his very conservative political base, and to create a conservative legacy in the judicial branch. In keeping with this notion, we also know that very right-wing advocacy groups have delighted in Roberts' appointment and think him to be "one of their own" ideologically.

Democrats would be justified in rejecting Roberts on this basis. The President has every right to name someone to the Supreme Court based on that person's ideology and jurisprudence. Indeed, we expect Presidents to do this.

But by the same token, in providing "advise and consent" for such nominations, it is perfectly appropriate for Senators to vote against nominees because of significant disagreement with the nominee's views.

Democrats are terrible at articulating this point. They insist on describing the test as whether a nominee's views are "out of the mainstream" - and some Democrats are saying Roberts flunks this test.

This is nonsense. Roberts's views, to the extent we can glean them, are very mainstream - conservative mainstream. The real issue is not mainstream versus out of the mainstream, but right versus wrong.

Democrats were justified in voting against Bork because he had been (from their perspective) on the wrong side of just about every legal issue of the modern era. If Democrats see Roberts's views as equally antithetical to their vision of the Constitution, then they have a strong reason to vote no on his nomination.

Rejecting Roberts, Based on Ideology, Almost Certainly Will Lead to a Worse Alternative

The problem with the ideological justification for voting against Roberts, however, is that, based on his testimony, he does not appear to be as conservative as either Bork, or any number of other potential nominees or current justices. In fact, he has rejected a key tenet of current right-wing jurisprudence: the jurisprudence of original intent, which holds that the judge should try to divine the intent of the Framers of the Constitution, and its Amendments, and hold strictly to that intent.

In his first day of questions and answers, Roberts emphatically rejected this interpretive method, though it is the avowed methodology of Bush's judicial heroes, Scalia and Thomas, and has served as the foundation stone of conservative jurisprudence for a generation.

Going straight for the Achilles heel of originalists, Roberts talked eloquently about why an originalist approach could easily lead to an overly narrow view of the Fourteenth Amendment's equal protection clause.

As Roberts pointed out, an originalist approach to the equal protection clause might well focus on the fact that the framers of this amendment intended it as a response to the specific problem of granting equal rights to emancipated slaves.

Under an originalist reading, then, the clause might be deemed not even to apply in other contexts such as women's rights. As Roberts emphasized, however, the text contains no such limitation, and thus fully supports invoking the Constitution's mandate of equal protection in a broad range of contexts.

Roberts also sought to assuage other liberal concerns. For example, he suggested indirectly that he might be less enamored of executive power than liberals fear. In this context, he noted that one of his judicial heroes, Justice Robert Jackson, viewed executive power rather differently once he moved from being Franklin Roosevelt's Attorney General, to being a justice on the Court.

Overall, moreover, Roberts has expressed a deep commitment to the integrity of judging, and to the idea that the reasons for court decisions really matter - as, of course, do the facts of the cases themselves. This combination of idealism and pragmatism bodes well.

Democrats Should Take the Risk of Confirming Roberts, and Focus on the Next Nominee

All this, of course, is reading tea leaves in a situation where the nominee is producing very few leaves. It is possible, of course, that Roberts's testimony is insincere, and that he is really a closed-minded ideologue who is shining on the Committee democrats with nice-sounding platitudes.

Certainly, it would be preferable to have some idea when and why Roberts changed (if in fact he did) from a young firebrand into the "reasonable" conservative he appears to be (and wants to be seen as) today.

But cynical though I am, I'm willing to give Roberts the benefit of the doubt. Roberts already shows a keen appreciation for the diplomatic skills he will need to be an effective Chief Justice on the very divided Court he will be joining. He surely knows that his future colleagues are taking note of his testimony, and will look askance if he adopts a very different approach or persona after confirmation. In short, his credibility as Chief is at issue and he won't want to have squandered it.

In the end, then, I believe it's time for Democrats to start saving their ammunition for the next nominee: the one who will replace the swing-voting O'Connor, rather than the conservative Rehnquist.

We have long known that Roberts had the talent and experience to be a Chief Justice. And although the hearings have been stunningly uninformative overall, Roberts's testimony suggests that he is the wrong candidate to oppose on purely ideological grounds. Indeed, based on his testimony, Roberts may prove to be both more thoughtful and at least slightly more liberal than the former boss (Roberts served as Rehnquist's law clerk) whom he is replacing.

Democrats should vote yes, and hope for a pleasant surprise over what is likely to be Roberts's long tenure as the Court's first among equals.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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