The Roberts' Hearings

Confirmation hearings for Judge Roberts' nomination to become Chief Justice of the US Supreme Court finally got underway today, at least the preliminaries did. Judge Roberts was introduced, all members of the Senate Judiciary Committee issued their opening statements, and then the nominee spoke for six minutes.

I heard his remarks, and I'm sure a transcript of them is available any number of places (which I am too lazy to look up at the moment). I didn't find his remarks terribly enlightening, probably because they weren't intended to be so. I do wish, however, he hadn't used a baseball analogy by claiming that judges should be umpires rather than pitchers or batters. I am mightily tired of having important functions of government being compared to games. Government is not a game, and the analogy is both misleading and demeaning of the functions of government.

The real purpose of the hearings begins tomorrow as each member of the committee begins asking questions of the nominee, which various Republican members of the Judiciary Committee advised the nominee that he really didn't have to answer. Still, he will have to answer some of the questions, and some of the areas of most interest to all the committee members, and the nation at large were described rather nicely in a Washington Post editorial.

A nominee, bound by ethics, cannot be expected to telegraph how he or she is likely to vote on a pending case, so confirmation hearings tend to produce a degree of tension between the nominee's reticence and the desire on the part of senators to understand the package they are being asked to buy. But the public should expect to gain a better sense of how Judge Roberts would approach cases, and the extent to which he has a strongly ideological bent.

The first critical area that senators should probe is Judge Roberts's attitude toward what is called stare decisis , the doctrine that precedents should typically be followed by the courts in the name of the stability of the legal system.

Another critical issue is the balance of power between the federal government and the states -- an area in which Judge Roberts could move the court in either a positive or a negative direction.

Another subject the Judiciary Commitee will want to explore is Judge Roberts's views on privacy rights. Liberal groups have read a great deal into his work on abortion-related matters. As a government lawyer, he signed a brief urging the overturning of Roe v. Wade . In one internal memo he referred to the "so-called right to privacy." Senators should explore whether Judge Roberts, as the memo implies, has a dismissive attitude toward past decisions that protect reproductive freedom. [Emphasis added]

Interestingly, all of these areas deal directly with reproductive freedom in one way or another, either in terms of Roe v Wade or the Griswold case, but they also have to do with myriad other issues which the Supreme Court faces with each session. Getting the good Judge on record with respect to these areas is crucial, both because he has had a relatively short time on the federal bench and because the White House has once again stonewalled Congress in terms of releasing his papers from the years he served in George H.W. Bush's White House.

I hope that the Democrats on the Senate Judiciary Committee meant what they said today about questioning the Judge closely. We deserve no less.