Well Well Well, You're Feeling Fine

I'm honestly not that worried about John Roberts.

My new roommate, Cathy, is a television news junkie, and thus I've seen more of the confirmation hearings than I might have otherwise. They seem to consist mainly of Democratic senators demanding to know how Roberts would decide cases on certain preferred controversial topics, and Roberts responding that it's impossible for him to say, he doesn't know, it would depend on the case that was brought before him. He's willing to speak on things about which he's already written; he won't speak on whether his overarching judicial philosophy is "strict constructionist" or not. Roberts responded that to look at the law in question as the precedent was foolish, that one had to get broader than that. Senator Biden, who asked that question in the circumlocuitous fashion that all the senators did (Schumer, whose questions were also interesting, was quite noteworthy on that front), seemed not to feel that the question was answered, but I did. I mean, think about Bowers v. Hardwick (the 1986 case that Lawrence v. Texas overturned, questioning whether sodomy between consenting adults was covered by the right to privacy)--the majority's argument was simply that there existed no legal precedent for the Constitution protecting homosexual sodomy. That's basically doing exactly what Roberts said he didn't do, claiming that precedent about a particular issue comes down only to the particular law in question in this particular case. As to it being impossible for him to say, yes, it is. That’s a perfectly fair answer. A Supreme Court Justice’s personal interpretation is not all that’s relevant to a case; it’s his (and Ruth Bader Ginsburg’s) role to decide which side has made the more compelling constitutional argument. Not knowing how individual lawyers might argue the individual case about these controversial issues, Roberts can’t know how he’d rule. Makes sense to me.

Cathy pointed out, and she's right, that he *should* be answering questions about how he would have ruled in cases that have already been decided. "How would you have ruled in Roe v. Wade," though I'm not sure anyone has asked that, is a fair question, because the arguments of the particular case exist and have already been made and therefore he can analyze them within that context, rather than making sweeping generalizations about his political views. As far as I have seen, we have not gotten that, and I’ll consent that we should.

We don't know a lot about John Roberts, but I'm kind of okay with that, because what we do know about him does not conform to political orthodoxy. He wrote that Roe was wrongly decided (in case you haven't noticed, I've concluded that the names of Supreme Court cases need to be italicized, and so they will be in this blog from here on out); he also did pro bono work in favor of gay rights in Romer v. Evans, the case that said laws explicitly permitting discrimination against homosexuals were unconstitutional. (Check my research there; I've never read that case.) We know he's a very good impromptu speaker. We know he worked for conservative administrations, but is answering questions that seem to break him from the judicial philosophy of Antonin Scalia, the Court's living conservative stronghold. We also know that he feels strongly, and feels at pains to reassure us, that his personal views will not drive his decisions. On the surface that statement’s relatively uncontroversial, but, though I’ve never read transcripts of his confirmation hearings, I’m willing to bet that Rehnquist never said any such thing.

On the news (at least NBC and MSNBC News, which is what we've been watching), reporters repeat that "the Democrats" are anxious about Roberts, irritated by his refusal to answer questions, and are likely to vote against his confirmation. I've thus far heard little to nothing about the Republicans' opinions of the man. Now, they are in the same hearings with the same opportunity to answer questions; they're getting as little concrete information as the Democrats are. We can only conclude that they believe they can rely on Bush's decisionmaking power to protect them: even though they have so little information they remain confident that, being nominated by their president, Roberts will come down on their side. So the question is, who’s playing whom here? Cathy asserted that Rove et al would not have allowed Roberts to get by were they not certain of his investment in their agenda. Either the Republicans are playing the Democrats with this nomination in the first place—or, as Cathy put it, Roberts is playing absolutely everyone, and is the smartest guy in the room.

I don’t completely agree with either, but I’m much closer to the latter. In my view, most of the public, including the Senate, approaches the concept a Supreme Court justice's relationship to politics with such ignorance that playing them is relatively easy—you don’t have to be smarter than everyone in the room, just clearer about your role. And since very few senators have ever thought about being a Supreme Court justice, it's no surprise that an attorney and appeals court judge would be much clearer on the role of a Supreme Court justice. Liberals and conservatives make this mistake in equal measure, and it’s based on our reasonable assumptions regarding electoral politics. But Supreme Court justices do not have a constituency to please. I would not, for example, say that David Souter, appointed to the Court by Bush the First, “played” the Senate at that time. A series of hearings over the course of a week were not sufficient to make clear exactly what his decisions would be for the next twenty-odd years. And you certainly could not have predicted that this man would become a “liberal” stronghold on the Court based simply upon who nominated him. Over the course of a lifetime appointment, people are almost bound to change—some change more than others, but almost every justice has made a decision that will surprise you. (Even if, as in the case of Lewis Powell on Bowers>, he regrets it later.) There are some justices who define their tenure by a strict and overarching judicio-political philosophy, adhering to that orthodoxy strictly throughout. Rehnquist was one such justice; in his confirmation hearings Roberts, who clerked for Rehnquist, has made clear that he is not. I think we’re gaining a lot more information than the media’s giving us credit for.

It may be that I’m complacent and would rather think about the domestic and foreign policy disasters in the executive branch. It may be that Ann Coulter’s gotten under my skin. But I think worrying about John Roberts’s politics is a fruitless exercise. There’s very little we can definitively know about the decisions he will make in the next thirty years, and honestly, most of what I’ve seen about him philosophically, I like. Only the concrete aspects of what he’s saying are uncontroversial; in the abstract, he’s saying a great deal. In some ways, he’s more liberal than I am—he believes there’s a *constitutional* right to privacy, he even said so. I may live to eat these words, but my guess would be that I’ll eat them and purge them over the course of the next thirty years. In a lifetime appointment, I think that's how it should be.

*By the by, bonus points for figuring out the title reference and its relevance to this post. I think I'm actually going to start keeping track of bonus points, post winners every few months.