The Senate Judiciary Committee is into its third day of hearings on the confirmation of John G. Roberts, but if you’ve tuned out already, well, you can be forgiven. Listening in for even just a few minutes, you might have the sense that you’ve heard it all before — and not just from Roberts himself.
Roberts said earlier this week: “I have no agenda.” Sound familiar? The folks behind IndependentCourt.org thought so, and they were right. In 1991, Clarence Thomas said: “I have no agenda.” And in 1985, Antonin Scalia said: “I have no agenda.” When Roberts said over and over again during the last few days that he has “no quarrel” with this precedent or that, those words sounded sort of familiar, too. As the group notes, maybe that’s because Clarence Thomas said during his confirmation hearings that he had “no quarrel” with particular Supreme Court decisions on the right to privacy and religious freedom, only to reverse course on those issues once he got his lifetime appointment to the court.
Mostly, though, Roberts has been repeating his own words this week, refusing again and again and again and again to talk about issues even tangentially related to those that might someday come before him on the Supreme Court. He has refused to answer questions about Roe v. Wade, about end-of-life decisions, about the separation of church and state, about the Supreme Court decision that put George W. Bush in the White House and about just about everything else but the color of the sky and the kind of tree he’d be if only he could be one. People for the American Way has just posted a quick-cut, fast-forward version of the sort of evasions that had even Sen. Joe Biden giving up in frustration this week. “We are rolling the dice with you,” Biden told Roberts. “You told me nothing.”
What makes the experience so frustrating is that if Roberts is not going to comment on specific cases and issues, there really is pretty much “nothing” Roberts can say. Scalia and, perhaps to a lesser degree, Thomas came to the court armed with overarching theories — grounded in originalism or textualism or what have you — about how they would go about deciding cases. Roberts comes by way of a different path. He has almost always been an appellate litigator, a lawyer who wins cases by cobbling together whatever sort of legal argument he needs to win. Maybe it’s an argument based in originalism today. Tomorrow it might be one based in textualism, in legislative history, in concerns for precedent or even ideas about evolving standards of human decency. Whatever works today works today, and if something else works tomorrow, so be it. That’s not how an academic, like Scalia once was, might think about the law, but that’s how a litigator approaches it. Scalia can at least claim that his theory of constitutional interpretation sometimes constrains him to decide a case in way that he wouldn’t if he were starting each proceeding from scratch. But if Roberts doesn’t have that kind of overarching theory going in — and he has said this week that he does not — what else can you ask him except how he would have ruled in this case or that?
So the Democrats have kept asking, and Roberts has kept evading. The left feels stiffed, and even some on the right are feeling a little worried. Manual Mirada, former counsel to Senate Majority Leader Bill Frist, tells the Boston Globe that Roberts’ testimony has started “a few fires” among conservatives, especially among antiabortion activists who were alarmed by Roberts’ seeming embrace — vague though it was — of a constitutional right to privacy. Gary Bauer explains that a “careful reading” of Roberts’ comments shows that “he committed to nothing once he’s on the court.” But Bauer, for one, is fine with that: “We are left with what we always had — a hope and an expectation, based on the totality of his record, that if confirmed he will be part of a new conservative majority.”
Bauer’s prediction is almost certainly right. You just didn’t hear it from John G. Roberts himself.