The careful — and dull — choreography of the Roberts hearings

September 17, 2005

Guest Post by Morbo

I spent the week listening to the John Roberts confirmation hearings on the radio as I went about my business. I came away depressed.

Barring some sort of stunning eleventh-hour revelation, Roberts will be the next chief justice. That’s depressing enough. What’s worse is that the hearings have a going-through-the-motions feel to them that, quite frankly, makes them seem scripted. I have to wonder why we’re even wasting the time.

Even without the aid of amazing psychic powers, I could have predicted the course of the hearings. Roberts was asked early on about stare decisis. Of course he said it’s the greatest thing since sliced bread. Stare decisis! Man, he loves it. He wants to marry it. Who expected anything else?

Roberts was asked about abortion. He refused to answer. The issue might come before the court.

Roberts was asked if he would be willing to put aside his personal religious beliefs when judging cases. Oh, but of course, he said. He loves what St. John Kennedy said that time about the need to divorce one’s personal religious views from politics.

Roberts was asked about memos he wrote back when he was working for President Ronald W. Reagan. There is some pretty damning stuff in these memos, but Roberts has two easy outs. His answers were either, “Well, I was working for Reagan then and had to toe that line” or “Give me a break, I was 14 at the time.”

I kept waiting for Republican senators to claim that Ruth Bader Ginsburg didn’t answer anything, thus Roberts does not have to either. I was not disappointed. It was a recurring theme of day two.

I also knew that one of the senators would ask Roberts for an opinion on some ancient case that no one defends any more. “Judge Roberts, in 1849 the Supreme Court struck down the wearing of hats on Tuesday. Do you agree that this was about the dumbest opinion ever?” And of course Roberts does agree it’s the dumbest opinion ever. What a surprise. I wasn’t really expecting Roberts to defend Plessy v. Ferguson.

The fact is, as much as some senators tried to smoke this guy out, they didn’t lay a glove on him. Despite all of those Reagan and Bush I era memos, his file is simply too slim. Here is a guy who has managed to reach the age of 50 without ever once popping off in a right-wing magazine, giving an inflammatory speech or saying something outrageous on TV. It’s quite remarkable — and kind of scary. Roberts has apparently been planning for this moment since he was 9. It freaks me out. I still wonder if he and his wife adopted those children to create the appearance of the perfect suburban family. (Let me guess — they also have an SUV and some kind of designer dog, right?)

I suppose Roberts and his handlers learned a lot from Robert Bork’s experience. I’m sure Roberts studied that period intensely as he continued on his long march to the high court. Roberts learned not to repeat Bork’s mistakes. Bork had made a career out of running around saying offensive things in public forums and popping off on every subject imaginable. He had a paper trail a mile long and was arrogant and all-around unpleasant. Plus, he looked somewhat satanic with pointy eyebrows and what appeared to be a Brillo pad glued to his chin.

Roberts, it appears, has apparently never expressed an opinion except when was working in a legal setting for someone else. Hence, he has the perfect defense: “Well, I was representing so-and-so, and so-and-so paid me to say that. What do I really think? Of course I can’t say. That issue might come before the court.”

In the end, Roberts knows that all he has to do is get through these hearings and he’s home free. Once on the court, he can do whatever he damn well pleases. I remember watching the Clarence Thomas confirmation hearings (the first round, before Anita Hill). He actually sounded reasonable. Once on the bench, he immediately started acting like a lunatic.

Our only hope is that Roberts will fall under the sway of Anthony M. Kennedy, the justice who eventually got the seat Bork wanted. Kennedy came on the court with guns blazing, and in early opinions ranted about the cases he’d like to overturn. For some strange reason, he moderated over the years. Kennedy voted against coercive forms of school prayer, refused to overturn Roe v. Wade and struck down anti-gay statutes. He’s still plenty conservative on other issues, but for a Reagan appointee he’s not bad.

It’s a slim hope, but it’s better than nothing. Still, I doubt it will work. Roberts has been planning for this moment for too long. He must have a plan in mind, some type of grand scheme. I can’t imagine what it is, but I doubt that progressives will like it.

Here’s hoping it doesn’t involve some kind of giant death ray.

September 17, 2005 at 1:39 pm

I don’t know, is the worst thing we can say about this guy that because there are no crazy right-wing ravings in his past, he must therefore be a crazy right-winger? Suspicion and a healthy dose of skepticism are of course warranted, but maybe, just maybe, the reason that there are no smoking guns in Roberts’s history is that he actually believes all the things he’s been saying about judicial moderation and humility, respect for precedent, and so on? That strikes me as a little more plausible than the idea that Machiavellian planning and superhuman self-restraint have kept him from showing his true conservative fanatical colors over the past 25 years, and political persuasion notwithstanding, that’s the sort of philosophy I want in a chief justice. Of course he’s conservative, we know we’re not getting another Ginsburg, but under the circumstances I think the situation could be a lot worse. I’m far more worried about Bush’s next nominee than I am about Roberts.

Here is a guy who has managed to reach the age of 50 without ever once popping off in a right-wing magazine, giving an inflammatory speech or saying something outrageous on TV. It’s quite remarkable — and kind of scary. Roberts has apparently been planning for this moment since he was 9. It freaks me out. I still wonder if he and his wife adopted those children to create the appearance of the perfect suburban family.

My thoughts exactly, ever since that first photo-op with the dancing kid. Nothing I’ve seen or heard since has changed that initial impression. Perfection in humans is freakish and weird. Even the appearance of it.

But never fear. Jon Stewart’s on the case. He announced during one show this past week that Roberts is gay. So that’s that, then.

Good point. It’s like the right-wingers braying hysterically about Clinton being a “crypto-liberal” precisely because it was so obvious that he wasn’t one. Clinton was nothing even vaguely resembling a “liberal”. Clinton was, as Michael Moore so aptly put it, “the best Republican president we’ve had since Lincoln”.

I don’t think Roberts is a crypto-wingnut. His record does show, however, in great detail and at his own eager admission, exactly what a corporate whore the guy is. I mean, what has he said all week? “I wrote that because someone paid me to”. He’s no wingnut; he’s a shill– and he is proud of it.

I said in my letter to the editor: Roberts would make an excellent Corporate General Counsel, but he’s not fit to be a Supreme Court Justice. He writes and says and believes whatever is gonna get him that green stuff.

My greatest fear is, that’s exactly what he’s going to continue to do on the Court. Anything his Corporate America cronies want, they’ll get.

Do I think abortion is toast? Gay marriage? Medical marijuana? Why knows, but probaly not. His wife is unquestionably a wingnut, but that doesn’t necessarily mean he is.

But the EPA is fucking *over* if this guy gets on. As are gas-mileage requirements, energy-efficiency, class-action suits, affirmative action, open access, open source, copyright and patent limits, and anything else that mildly irritates our Corporate Overlords.

Roberts is a corporate shill. Maybe that’s not as bad as being a wingnut, but in the long run I expect it’s more damaging to our world and our society.

I’ll admit to being lulled into a “he doesn’t seem that bad” attitude towards this guy.

But this guy was interviewed by Rove, by Cheney, and by Bush (but he, for obvious reasons, does not count). Is there any chance in hell either of those guys would let anything close to a moderate even close to the court?

THIS is why the guy scares me.

Goatchowder,

Ok, you’re probably right, I get the corporate whore vibe from Roberts too, but, as an attorney myself, I have to resist the notion that “I wrote that because somebody paid me to” is an indication of moral bankruptcy or a willingness to put one’s own financial gain above the common good or matters of principle. Yes, lawyers advocate the legal positions of their clients, ideally without regard to their own personal feelings on the matter, and they typically make a lot of money doing it. But I think it’s important to remember that they perform a valuable, indeed essential, service to society at the same time. A good attorney must be able to divorce her personal feelings about a matter from the legal position that best serves her client’s interests; as an advocate, it is not her role to make the ultimate decision as to the merits of the case, but only to present the strongest possible legal arguments for one side of the issue to a neutral judicial body that makes that ultimate decision. I have, on more than one occasion, made arguments on behalf of a client in favor of a legal position, or interpretation of some case or statute, in which I personally felt that the other side’s position was better. Lawyers do this all the time, and we do so with a clear conscience because the common law system is premised on the notion that the best way to reach the truth of an issue is to have both sides presented vigorously before a neutral arbiter. As a government attorney, Roberts’s job was not to express his own opinions or preferences, but to advocate on behalf of his client, in this case the Reagan administration.

It’s also worth noting that Roberts wrote his more controversial memos while working as a government attorney for the Reagan White House; I can assure you that no lawyer working for the government does so for the money, as private practice is *much* more lucrative.

I’m generally in agreement with Dillon here. Herr Carpetbagger raises the example of Thomas, who has issued stacks of loony verdicts, but it’s worth remembering that GHW Bush’s other nominee was Souter, who I think was a good appointment and who the right feels betrayed by. I’ve read other commentators (wish I could remember where) who’ve noted that the tendency is for moderate right nominees to drift left as they go along, as they begin to focus more on their legacies. CB’s mention of Kennedy points to one example of this I think, and I reckon Roberts is likely to be in that mold. Like Dillon, I shudder to think who the next nominee will be, and I hope the Dems will go to the mat, filibuster and all, to make sure one of the really certifiable loonies doesn’t make it on. Yes, Roberts is unnervingly, freakishly perfect, but that just doesn’t seem to be compelling grounds for keeping him off.

Maybe Roberts will be an acceptable Chief Justice. Maybe not. The point is that no one knows enough to make an informed decision. I’m witrh GMF on this one. There has to be a good reason he was nominated, and I have a sneaking suspicion it has something to do with ideology. This is the time to send a message not to Roberts, but to GWB. Supreme Court nominees will get a fair shake, but refusal to release relevant information will raise plenty of red flags.

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