Gauging Roberts's
reverence
By Ellen Goodman,
COMMENTARY, boston.com July 24, 2005
IN THE END, I'm hoping for his ''deep
regard" for the Supreme Court. I'm rooting for what John G. Roberts
described as ''a lump in my throat whenever I walked up those marble steps."
The president's choice for the Supreme Court is no Sandra Day O'Connor. If
O'Connor was a moderate who became a swing vote, Roberts is only ambidextrous on
the squash court. He plays jurisprudence on the right side.
It's no surprise that Bush picked this man with impeccable credentials.
Impeccable conservative credentials. Roberts clerked for Justice
Rehnquist, lawyered for Reagan and Bush I, and argued 39 cases before the
Supreme Court. Did anyone actually expect this president to pick a soul
mate for Ruth Bader Ginsburg?
Nevertheless, the Washingtonian who knows full well the drama of this moment
chose to introduce himself by describing his respect for the institution as a
lump in the throat. Compare that to Antonin Scalia, who entered that
Olympian building with boxing gloves. Or Clarence Thomas, who wears a chip
on his shoulder.
But if that reverence for the court is more than boilerplate patriotism, it
comes with a responsibility to be truly open at Senate hearings.
It's not a secret that the Supreme Court remains one of the last trusted
institutions. Nor is it a secret that the trust is eroding. After
endless battles over religion and gay rights and, of course, abortion, too many
people now regard the court's decisions as the 5-4 sum of its individuals'
political beliefs. For too many, the Supreme Court is a stage for Supreme
Politics, and an opinion from the bench is treated as if it were an opinion on a
talk show.
The reputation of the court was not helped by Bush v. Gore, the ruling after the
2000 election. It's not helped by advocacy groups with war rooms at either
pole poised to attack or defend each new nominee as enemy or friend. But
it's also not helped by nominees who present themselves at confirmation hearings
as the only people in America to have an open mind -- a tabula rasa --
about such issues as Roe v. Wade.
The common wisdom is that Roberts was chosen for his long resume and short paper
trail. He has no damning tissue paper stuck to his shoe. Indeed, on
the issue of abortion there is only confetti.
In 1991, he was one of six government lawyers who wrote a brief saying, ''Roe
was wrongly decided and should be overruled." In 2003, while being
confirmed to the appeals court, he described himself as nothing but a lawyer
advocating for a client. Roe was the ''settled law of the land."
Now I am sure the White House wants him to spend August practicing how not to
tell the Senate Judiciary Committee what he thinks about Roe v. Wade. He
can read from the note Sandra Day O'Connor held in her hand, ''I do not believe
as a nominee I could tell you how I would vote." Scalia even refused to
acknowledge whether he believed in Marbury v. Madison.
I am not suggesting that nominees should announce how they would rule on cases
they haven't even heard. No one should ask Roberts about the upcoming New
Hampshire parental consent case or the partial-birth abortion ban. But any
would-be justice should share his thoughts about privacy rights and Roe v. Wade.
Surely, dodging is disrespectful. It breeds cynicism -- or is it realism?
-- that judges can't say what they think until they're on the bench.
Today, the Roberts weathervane points to confirmation. He is on the
opposite side of the bell curve of likability from Robert Bork. He's
described as brilliant and affable even by opponents, and Republicans have the
votes. The groups geared for battle may offer up bumper sticker opposition
and emergency alerts and talking points, but this relative unknown seems likely
to be our 109th justice.
But that's all the more reason why Roberts himself should willingly let a
querulous, uneasy American public into his thought process and beliefs.
This is when a candidate can cut through the jargon, let us know how he sees the
Constitution, how he defines ''legislating from the bench," indeed how he
defines judicial conservatism itself: Does it mean maintaining a precedent
or upending it?
Senators are often criticized for asking questions, while the candidates are
expected to avoid them. The question this time is not whether Roberts is
unfairly scrutinized. It's whether he'll expansively and honestly let us
into the mind of a 50-year-old who may serve for life. It's about trust
and respect and whether the next generation will approach those marble steps
with a lump in the throat or a shiver down the spine.
Ellen Goodman's e-mail address is
ellengoodman@globe.com. Ellen
Goodman Commentary also published in the NJ Home News Tribune this date under
“Top court nominee should let us see how he things – Confirmation process is
about trust, respect.”
|
