Imagine dating someone for a couple of weeks before you have to decide whether to make a lifetime commitment. That is precisely the situation of senators in confirming a Supreme Court justice. Because a confirmation is rarely a case of love at first sight, it usually comes down to the testimony of the nominee, who is invariably told by White House chaperones to say little and smile a lot.
John Roberts may be the ultimate example of the judicial blind date.
The White House has steadfastly maintained a cone of silence around Roberts, whose hearings are set for next week. Indeed, Roberts himself has developed an almost serene, Buddha-like quality as he floats through walls of reporters without answering a single question. Even his name seems to shout discrete anonymity like thousands of John Smiths on “no-tell-motel” ledgers across the country.
Reporters have been combing through more than 50,000 pages of documents in search of the real John Roberts. Various news articles complain about the lack of a single definitive document — some legal version of Martin Luther’s 95 Theses of Contention nailed to the Supreme Court door.
These papers, however, do offer a mosaic that reveals a considerable amount about Roberts. The man who emerges is a thoughtful, witty and gifted lawyer. He is also someone who wouldn’t likely have many, if any, colleagues to his right on the high court. I liked the Roberts in these papers, but frankly I tend to be an easy date for nominees. He is likely not as compatible with some of the senators who are having commitment issues.
What is known
Consider what we know about Roberts in a few of the most sensitive areas:
Abortion. Roberts has litigated against Roe v. Wade, though he can claim that he was merely representing a client. His past statements indicate that he has supported those positions personally and professionally. During the Reagan administration, Roberts supported a memorial service for aborted fetuses as “an entirely appropriate means of calling attention to the abortion tragedy.” In the 1980s, Roberts pushed for new judges who would support “the sanctity of innocent human life” and described the right to abortion as based on the “so-called ‘right to privacy.’ ” In 1991, he referred to Roe as “wrongly decided.” In cases expected next term, not only will Roberts likely vote for parental-notice and the ban on a procedure that critics call “partial-birth” abortion, his past views also would compel a vote to overturn Roe altogether.
Access to courts. Roberts has been somewhat hostile to citizens and groups seeking to challenge the government. In 1981, he advocated greater standing challenges to keep public interest groups out of court and recently praised opinions that barred environmentalists from suing in many cases. The true Roberts was probably captured in a 1993 law review article, criticizing many such cases as brought “at the behest of any John Q. Public who happens to be interested.”
Affirmative action and discrimination. These papers reveal a long opposition to racial and gender preferences. Roberts has opposed set-aside programs for minority contractors and in 1995 said, “You don’t overcome racism by engaging in it yourself.” He has also criticized efforts to require “comparable worth” wages for women as a “radical redistributive concept.” These papers reflect a deep-seated and principled opposition to the use of race or gender in sorting out citizens for jobs, contracts, or other benefits.
Criminal law and procedure. Roberts has criticized the exclusionary rule, which bars the use of illegally obtained evidence, and, as a judge, has favored police powers over privacy concerns. He has also supported restrictions on habeas appeals to the federal courts, including in death row cases. Though Congress and the courts have moved toward the positions that Roberts first advocated in the 1980s, Roberts has a view of the criminal process that is strikingly like that of his mentor, Chief Justice William Rehnquist.
Environmental laws. Roberts’ past litigation, writings and opinions reveal a fairly antagonistic view of environmental interests, including a strident if not mocking dissent in a recent Endangered Species Act case. Combined with a strong belief in states’ rights and federalism, Roberts would likely vote with Justice Antonin Scalia on limiting such federal programs.
National security and presidential powers. Roberts is clearly highly deferential to presidential powers, including a recent decision siding with President Bush on a narrow interpretation of the Geneva Conventions. He has supported Vice President Cheney’s appeal in his withholding information on the role of lobbyists in the drafting of the energy bill.
Separation of church and state. Roberts appears to hold the same view of the religion clauses as Scalia and the other conservatives do. For example, he has described the courts as hostile to religion in school cases and has stated that the position of the courts that the Constitution prohibits a moment of silence “or even silent prayer” is “indefensible.”
What we think we know …
Of course, history has shown that predicting a nominee’s voting record makes reading goat entrails and phrenology look scientific in comparison. The problem with divining a future legacy is that it’s not simply a question of who a nominee is but also who that nominee will become as a justice on the Supreme Court.
If there were a constitutional version of divorce, many a confirmation would have been undone as fast as a Vegas-strip wedding. Harry Blackmun was viewed as a solid conservative as an appellate judge when he was nominated by President Nixon. He turned out to be a liberal icon. Indeed, the greatest liberal icon, Earl Warren, was nominated by conservative President Eisenhower. David Souter was viewed as a reliable conservative from the New Hampshire Supreme Court — he has proven to be a consistent vote on the left of the court. Then there is Sandra Day O’Connor, who enraged conservatives in casting the critical vote with liberal justices in many cases.
Such changes can also run from left to right, disproving the idea that the court has some inherent liberalizing effect on jurists. President Kennedy nominated the liberal Byron White, who ultimately opposed much of the liberal agenda.
Roberts is unlikely to suddenly find his inner liberal voice on the court. In looking back at jurists who surprised their nominating party, they are largely individuals who did not have a clear philosophy before joining the court. Though highly credentialed, they were not ideologues — at least not before they joined the club of nine. In the case of O’Connor, a judicial philosophy never did emerge. Her opinions were often inconsistent, political and outcome-driven.
John Roberts, to his credit, is no Sandra Day O’Connor. Roberts is someone who has thought long and hard about judicial philosophy. Justice Clarence Thomas’ statement in his confirmation hearings that he simply does not have a personal opinion about Roe v. Wade would be a ludicrous answer from Roberts. He is more like Justices Ruth Bader Ginsburg and Scalia, who came to the court after a long history of advocacy.
No, the court is not likely to change John Roberts, but Roberts will almost certainly change the court.