The most enlightening thing you can read about the upcoming confirmation hearing for John Roberts is this transcript (huge PDF warning) of his appearance before the Senate Judiciary Committee two years ago. (via How Appealing) Since the focus seems to be on Roe v. Wade lately, here are some exchanges that might shed some light on where Roberts stands.
Senator DURBIN. So, in 1991, you are in the Solicitor General’s Office, and in Rust v. Sullivan, you end up signing on to a brief which calls for overturning Roe v. Wade, one of the more controversial Supreme Court cases of my lifetime. When we asked repeatedly in questions of you what your position is on Roe v. Wade, you have basically danced away and said, “No, no, my personal views mean nothing. I am just going to apply the law.”
This, in my mind, is evasive. I need to hear something more definitive from you. Was the statement in that brief an expression of your personal and legal feelings about Roe v. Wade, that it should be repealed?
What is your position today, in terms of that decision?
Mr. ROBERTS. The statement in the brief was my position as an advocate for a client. We were defending a Health and Human Services program in which the allegation was that the regulations issued by the Department of Health and Human Services burdened the constitutional right to an abortion recognized in Roe v. Wade.
At that time, it was the position of the administration, articulated in four different briefs filed with the Supreme Court, briefs that I hadn’t worked on, that Roe v. Wade should be overturned.
Now, if Roe v. Wade were to be overturned, the challenge to the regulations that we were tasked with defending would fail, and so it was appropriate in that case to include that argument. I think it was all of one or two sentences. The bulk of the brief was addressed to why the regulations were valid, in any event.
But since that was the administration position, and the administration was my client, I reiterated that position in the brief because it was my responsibility to defend that HHS program.
Senator DURBIN. Understood. I have been an attorney, represented a client, sometimes argued a position that I did not necessarily buy, personally. And so I am asking you today what is your position on Roe v. Wade?
Mr. ROBERTS. I don’t Roe v. Wade is the settled law of the land. It is not it’s a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it’s the settled law of the land. There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.
Not exactly music to the ears of Roberts’ Operation Rescue defenders. Care to elaborate a little further Mr. Roberts?
Mr. ROBERTS. Roe v. Wade is an interpretation of the Court’s prior precedents. You can read the opinion beginning not just with Griswold, which is the case everybody begins with, but going even further back in other areas involving the right to privacy, Meyer v. Nebraska, pierce v. Society of Sisters, cases involving education. And what the Court explained in that case was the basis for the recognition of that right.
Now, that case and these others certainly Brown was subjected to criticism at the time as an example of judicial activism. Miranda was as well. But, again, all I can do as a nominee is look to the rationale that the Supreme Court has articulated.
Senator SCHUMER. So you don’t think Roe v. Wade was judicial activism as you defined it in your
Mr. ROBERTS. The Court explained in its opinion the legal basis, and because the Court has done that, I don’t think it’s appropriate for me to criticize it as judicial activism. The dissent certainly thought it was and explained why, but the Court has explained what it saw as the constitutional basis for its decision.
My definition of judicial activism is when the Court departs from applying the rule of law and undertakes legislative or executive decisions.
So, based on his appearance before the Senate, Roberts isn’t quite the hardliner that Bush promised and we feared. Then again, when pressed on his judicial philosophy, he wasn’t exactly forthcoming :
Senator DURBIN. I found your answer evasive. When I look at what you had to say about your philosophy, you said, “In short, I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document,” and then you went on to say I am not going to draw any conclusions on the Supreme Court decisions.
I need more. I need to hear more from you about where you are coming from and, at least hypothetically, if you agree that those who call themselves strict constructionists would not likely be in the vanguard of the socially important Supreme Court decisions that we have seen in Brown v. Board, Miranda or Roe v. Wade.
Mr. ROBERTS. Well, Senator, I don’t know if that’s a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, “I’m an originalist, I’m a textualist, I’m a literalist or this or that.” I just don’t feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term “inferior court judge,” I’ll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be.
[. . .]
Senator DURBIN. That is a reasonable answer. It is also a safe answer, and I am not going to question your motive in that answer. I accept it at face value as being an honest answer, but it raises the question that comes up time and again. If this job is so automatic, if the role of a judge is strictly to apply the precedent, then, frankly, I think we would have as many Democrats being proposed by the Bush White House as we do Republicans, but we do not. They understand that it is not automatic, it is not mechanical.
There are going to be discretionary and subjective elements in decisions, and that is why we have people coming from major law firms who have made a living representing rather wealthy clients. We have people who are conservative in their philosophy. We have many, many members of the vaunted Federalist Society, which my Chairman is so proud to be part of, all of these people come before us because I think, when it gets beyond the obvious, we understand that there is subjectivity here.
Again and again, when pressed to state his personal preferences, John Roberts obfuscated, reminding the Senators that the role of an appellate judge is to apply Supreme Court precedents, not to question them. You’ll be hearing a lot on the right about how John Roberts has already been confirmed once, but it bears repeating that the answers that Roberts gave in his previous testimony aren’t applicable to a Supreme Court confirmation. He shouldn’t be allowed to stonewall again on questions of judicial philosophy.
Needless to say, Roberts’ mealy-mouthed answers give me a lot of reservations about what kind of jurist he’d be. My continuing hesitancy can be summed up by this statement by Ted Kennedy earlier in the transcript :
President Bush ran on a platform of selecting judges who will be like Justice Scalia and Justice Thomas. We all understand that meant judges who will be activists in reducing the power of Congress to protect people’s rights. You must understand, as everyone else does, that you were selected because those at the White House and the Justice Department knew your record and assured the President your decisions would please President Bush.
Since the President made sure to cover all his bases by picking someone who has very little experience on the bench and a lifetime of opinions that he can blame on his clients (whether fairly or not), our best bet is to research the hell out of this guy and be prepared for some serious grilling.