Sen. Joe Biden explains why John Roberts' baseball analogy misses the mark.

By T.g.

Published September 13, 2005 5:01PM (EDT)

Joe Biden began his questioning of John Roberts today by telling the Supreme Court nominee that he "hit a home run" on his first day of confirmation hearings. Then the Delaware senator explained why the baseball analogy Roberts laid out Monday isn't a particularly apt way for talking about the work of a Supreme Court justice.

In his brief opening statement Monday, Roberts said "judges are like umpires" in that they "don't make the rules, they apply them." The analogy works in certain cases: The U.S. Constitution provides that treaties require the approval of two-thirds of the Senate, and judges aren't free to decide on their own that a bigger or smaller number is required. But as Biden explained, there are a lot of cases -- especially the ones likely to come before the Supreme Court -- for which the Framers of the Constitution didn't "set the strike zone."

What is an "unreasonable" search and seizure? What rises to the level of "cruel and unusual punishment"? What amounts to the "establishment of religion"? When does a government action deprive a citizen of "liberty" without "due process of the law"? What specific rights are protected by what Roberts has described as the "so-called 'right to privacy'"?

On questions like these, Biden said, Roberts' "strike zone" might be "very different" from another judge's, and the Senate has a right and responsibility to understand how he'd go about calling balls and strikes. Roberts didn't seem to disagree, but he didn't provide much in the way of answers, either, declining again and again to state his views on particular issues on the ground that they might come before him in the future.

Along the way, though, Roberts was forced to make two concessions, at least implicitly. Under pointed questions from Biden, the nominee seemed to acknowledge that despite all the talk about the "Ginsburg rule," he was declining to answer questions that Ruth Bader Ginsburg addressed during her confirmation hearings. All nominees, Roberts said, "have to draw the line where they're comfortable."

More substantively, Roberts acknowledged -- again, tacitly -- a point we noted earlier today: Just because a judge says he endorses the right to privacy, that doesn't mean that he thinks the right to privacy encompasses the right to an abortion. Asked by Biden whether he believes there's a right to privacy to be found in the liberty clause of the 14th Amendment, Roberts said that he did and that he believed that "every justice on the court" today shares that view. That may be true, but at least two of those justices -- Antonin Scalia and Clarence Thomas -- are ready and willing to overturn Roe v. Wade.

By T.g.


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