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September 15, 2005

How to Stonewall the U.S. Senate

Dahlia Lithwick reads my mind upon listening in on the Roberts hearings:

Senate Democrats have had it up to here with "John Roberts the lawyer." And it's hard to blame them. John Roberts the lawyer won't answer any questions. At least, as the sole arbiter of what questions he'll answer, he's doing a rather phenomenal job of broadly defining great classes of questions as unanswerable:

  • He won't answer questions about any case currently pending before the Supreme Court (abortion, right-to-die);
  • He won't answer questions about any case that might someday conceivably be pending before the Supreme Court (separation of powers, contested presidential elections);
  • He won't answer questions he's decided on the court of appeals (since they may someday conceivably be pending before the Supreme Court);
  • He won't answer questions about prior nominees (Robert Bork) because that is not appropriate;
  • He can't answer questions about general legal doctrine because they are too general;
  • He can't answer questions about specific legal doctrine because they are too specific;
  • He can't answer questions about his early memos because a robot wrote them.

One question Roberts does feel comfortable answering today, in response to a lengthy ramble by Sen. Tom Coburn, R-Okla.: "Would you agree that the opposite of being dead is being alive?"

I've had this circus on the radio since they began, and I have yet to hear one substantive answer from Judge Roberts that would give anybody any legitimate sense of what kind of Chief Justice he would be or even what his judicial philosophy would be.

And furthermore, even in cases where he actually does give some marginal sense of what he claims to believe, how would we hold him to his answers? He can lie through his teeth about how he understands "strict constructionism" and once he's confirmed can climb into bed with Scalia and Thomas and nobody will be able to do anything about it. It's a classic "stealth" candidacy, and it's working brilliantly for him.

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Comments

I have to confess listening only intermittently, and I can't say I think I'm missing anything...

I don't think this is a classic stealth candidacy. This is something different.

A classic stealth candidate is someone like David Souter, where you really just didn't have enough information to guess what kind of a judge he would be. He was a blank slate, and the most you could do was assume that the people who made the nomination knew more about him than you did.

Roberts is different. We have a very good idea of what kind of judge he is and what kind of justice he would be. He has spent his life as a Republican activist and an ultra-right lawyer, arguing for the hardest of hard-line Republican right positions. He has been publicly and gratuitously dismissive of the idea that race and sex inequality matter. In his short time as a judge he has been a reliable voice for centralized Administration power. So in what sense is he a stealth candidate?

Roberts is a postmodern stealth candidate. The confirmation pantomime involves the Senate Democrats pretending to ask him questions, Roberts pretending to answer, and everyone in the Senate and the Washington press pretending that most of what we know about Roberts as a lawyer and judge don't count because it doesn't have the correct syntactic form to be officially certified knowledge.

Everything Roberts has said about his judicial philosophy is something that could have been said, with equal honesty, by someone like Lawrence Tribe. Nobody is fooled. Nobody genuinely fails to notice any differences between Roberts and Tribe. But by the rules of the game that the Senate Democrats and the mass-market Washington media have for some reason agreed to play, everyone has to pretend to be fooled.

It's a bizarre ritual.

He can lie through his teeth about how he understands "strict constructionism" and once he's confirmed can climb into bed with Scalia and Thomas and nobody will be able to do anything about it. It's a classic "stealth" candidacy, and it's working brilliantly for him.

In general this works in the other direction: Souter, Kennedy, O'Connor, and Stevens are all significantly more liberal than they seemed tobe when they were confirmed, but only Breyer is more conservative than he was when he was confirmed.

Roberts is different. We have a very good idea of what kind of judge he is and what kind of justice he would be. He has spent his life as a Republican activist and an ultra-right lawyer, arguing for the hardest of hard-line Republican right positions.

Well, he did give pro bono advice to gay rights litigants about how to argue in a way that would convince Scalia, Thomas, and Rehnquist. That ought to count for something.

According to a member of the legal team that worked on that gay rights case, Roberts' pro bono advice was a few hours of playing the part of the hostile questioning judge so the lawyer arguing the case could practice.

On the other hand, he did answer that question about his favorite movies....

Alon: He made pretty clear in hearings that he would have represented the state if they had approached him first - so I don't see how or why it should count for anything.

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