Judge Roberts Hearing

Though I was not able to watch as much of the confirmation hearings on Judge John Roberts as I wanted, I did see enough to formulate some opinions, both on Judge Roberts and on the confirmation process itself.

Roberts is a very impressive lawyer and judge. He has an excellent knowledge of the law, detailed and expansive in principle and practice. During the hearings, as apparently in his life, he displayed no particular passion, except for his deep respect for the law and for our Constitution. Some even said Roberts displayed no heart. He is a man whose mind is definitely in control of his body. Roberts appears to be a classic legal advocate, able to represent either side of a case and to put forth the best arguments possible for that side, without regard to his personal belief. Specializing in appellate work, Roberts argued his cases to judges instead of juries, so histrionics were of little or no use in his arguments.

When I practiced law, Judge Roberts was the kind of judge I wanted to have hear my cases, because I knew he would render a correct decision based on the facts and law, unaffected by his heart and passion. I would also have wanted him for an appellate judge if I had to appeal what I thought was an error of fact finding or a mistaken application of the law by a trial judge.

During the hearings, Judge Roberts emphasized he has no political or ideological agenda, describing himself as “my own man”. Maybe someday a nominee will decide that judicial independence should not start after confirmation, but rather after nomination, and will thank the President for the nomination and then announce that no preparation or coaching will be accepted henceforth from the Executive or Congressional branches of our government [many of the people seated behind Roberts at the hearings are actually a “confirmation team” assembled by the Administration to support Roberts in the hearings, led by former Republican National Committee Chairman Ed Gillespie].

Roberts did an excellent job of explaining why ethically he could not give an indication of how he would rule in specific cases that might come before the Court. He also artfully dodged hypotheticals, pointing out that real cases have an entire set of facts instead of the limited set presented by the hypothetical. I think nominees should be asked to present what they think would be the most effective arguments on both sides of an issue, for example, the best argument to keep Roe v. Wade as the law and the best argument to modify or overturn it. As each such argument is presented by the nominee, questioners could then interrogate the nominee on specifics of the argument and maybe thereby get a sense of whether the nominee does have an ideological viewpoint on the issue.

Presidents and Senators are partisans who choose Supreme Court Justices we would like to think are non-partisan. The Supreme Court may occupy somewhat of an ivory tower, but before inhabiting it, all Justices have lived in some part of the real world and have acquired some philosophy of life. Judge Roberts has lived the life of a conservative and is expected to bring that philosophy with him to the Supreme tower. My hope is that his love of the law and our Constitution, rather than his personal conservative philosophy of life, will guide his decisions on the Court.

Judge Roberts is exected to be confirmed. The only question is how many Democrats will vote against him, perhaps partly to send a message to Bush that the nominee to replace Justice O’Connor should definitely be a moderate.

Television coverage of the Roberts hearings was shamefully inadequate. I understand many people are more interested in watching Judge Judy, the TV small claims judge whose salary is greater than the combined salaries of the entire Supreme Court. I also realize that, absent anything like the pubic hair on the Coke can in the ClarenceThomas hearings, the cable news channels would stick with cases like Michael Jackson molestation charges and the teen missing in Aruba. But you would think PBS would have provided full coverage for the first confirmation hearing in 36 years of someone nominated to be Chief Justice of the United States who was not already sitting on the Supreme Court.