Thursday, September 22, 2005

Politics, principle, and the Roberts nomination

I haven't had much time over the past few days to address the latest developments in the ongoing Roberts nomination story -- what with that crazy election in Germany (still unresolved), North Korea's condition-laden promise to halt its nuclear program, the coming onslaught of Hurricane Rita, and a variety of other interesting stories (The Reaction has been quite diverse in its news coverage recently, and I hope you've all found it interesting) -- but let me offer a few good links here in anticipation of today's expected vote by the Senate Judiciary Committee:

Last week, Slate's Dahlia Lithwick offered daily coverage of Roberts's appearances before the SJC -- Monday, Tuesday, Wednesday, Thursday. The problem? "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." Roberts may be an excellent lawyer, and he may (repeat: may) prove to be an excellent chief justice, but it's hard to know what to think of him -- that is, it's hard to judge him as the nominee for highest judge in the land -- when he evades all the key questions tossed his way. "So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he's the most accomplished liar in world history."

This is where E.J. Dionne's recent column in the Post -- "The Case for a 'No' Vote on Roberts" -- comes in: "In his testimony, Roberts was brilliant, affable, engaging and amusing. He was also evasive, calculating and, well, slick":

By the end, the baseball metaphors of the early hearing had given way to gambling analogies. Schumer one-upped Sen. Joseph Biden (D-Del.), who had declared that senators were "rolling the dice with you, Judge." Schumer said Thursday: "This isn't just rolling the dice. It's betting the whole house."

That's right, and it's why as many senators as possible should vote no on Roberts -- by way of saying no to this charade. A majority of "no's," very unlikely to be sure, need not mean the end of his nomination. It would constitute a just demand for Roberts (and whoever Bush names next) to answer more questions in a more forthcoming way and for the administration to provide information that the public, and not just the Senate, deserves.

How many senators will have the guts to make that statement?

Well, Ted Kennedy and John Kerry of Massachusetts, for two. And also the top Democrat of them all, Senate Minority Leader Harry Reid of Nevada, who announced on Tuesday that he will vote against Roberts when his nomination comes to the Senate floor for confirmation. Who else? Well, according to reports, Barbara Boxer of California and Jon Corzine and Frank Lautenberg of New Jersey, for three more. But Patrick Leahy of Vermont, the ranking Democrat on the SJC, announced yesterday that he will vote for Roberts. It is not yet known how the other Democrats on the SJC will vote, but at least two other Democrats have announced their support: Tim Johnson of South Dakota and Max Baucus of Montana. And moderate Republican Lincoln Chafee of Rhode Island has similarly announced that he will vote for Roberts (just as he voted for John Bolton).

What does this all mean? Not much. Roberts will sail through the SJC vote and be approved by the full Senate. Perhaps the only intriguing matter, looking ahead to 2008, is how a certain senator from New York votes. And I'm not talking about Chuck Schumer.

As for me? Well, for what it's worth, The Reaction (reluctantly and with justifiable hesitation) endorses the nomination of John G. Roberts to be the next chief justice of the United States. Yes, if I had a vote, I'd vote to confirm him.

I explain myself at The Reaction here, here, and here, and at The Moderate Voice here. Go nuts.

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One final note here. I think Lithwick acutely sums up what's really going on here (see "Thursday" link, above): While most conservatives are content with Roberts's view that the Supreme Court's primary role is to uphold the law, liberals hold that the Supreme Court ought to advocate "law-plus":

All [Thursday] afternoon, witnesses have been testifying back and forth about John Roberts. His supporters call him brilliant and kind and diligent and principled. His detractors mostly say he doesn't get it. Some, like Democratic Georgia Rep. John Lewis, suggest he really is an ideologue: "He was in the boiler room of the Reagan administration," stoking principles and theories to attack established civil rights law. But most of his critics don't even do that. They just talk about history a lot.

One witness says, "we cannot escape history," and another says that under a Justice Roberts, the "civil rights revolution wouldn't have happened." Back and forth the witnesses go—Roberts is great/Roberts doesn't get it—never really acknowledging that they are not disagreeing; that it's possible to be kind and smart and to believe in the rule of law and also not to get it.

Because the "it" in question has nothing to do with the rule of law. It's about something I might call "law-plus"—the idea that the rule of law, in and of itself, has not always made this country fair. Law-plus rejects Roberts' notion that law, applied neutrally, invariably leads to just results. Law-plus acknowledges that the federal courts have leveled the playing field in this country by broadly interpreting civil rights statutes to allow individual causes of action. Law-plus means federal courts have read the civil rights amendments broadly, in order to level the playing field. Law-plus means accepting a counter-majoritarian role for the courts when the other branches of government cannot or will not protect the weak.

John Roberts isn't a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts' responsibility to make statutes effective. It is not even the courts' responsibility to make the world fair.

Throughout these hearings, John Roberts has presented himself as utterly neutral, without once acknowledging that judicial neutrality is a moral choice with moral consequences. I, for one, am willing to take him at his word that his personal views don't matter—that he will approach cases with an open mind and no agenda. But the question for the Democrats struggling to decide how to vote is whether open-mindedness and neutrality are enough...

The problem isn't whether John Roberts can be principled and fair on a thoroughly passive court. I'm sold on that. It's whether a thoroughly passive court can ever truly be principled and fair.

I'm tempted to say no. Beyond the law, after all, lies justice, and justice, it seems to me, requires flexibility. But just how much flexibility, especially in a country founded on the rule of law?

Roberts is a risk. Not just on abortion, civil rights, police powers, and the environment, but on the more theoretical matter of fairness. His alleged neutrality worries me now as much as any ideological persuasion that may linger beneath his cold, lawyerly facade. He may vote to overturn Roe, but what if he also levels the playing field of American life to the point where existing inequalities are cemented in place for decades?

The (classical) liberal in me wants that level playing field because I think that, in the end, it will benefit all Americans. Yes, Roberts is a risk, but he's a risk I'm willing to take.

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