John Roberts' favorite pastime

Day two of the Senate hearings: The baseball metaphors flew, and the nominee for chief justice dodged nearly every question thrown his way.

Published September 15, 2005 12:24AM (EDT)

Baseball would be a lousy game if no one called balls or strikes, if the batter could just stand at the plate and take pitch after pitch, softballs and hardballs, and never so much as move his bat. So it went at the second day of confirmation hearings for Judge John G. Roberts Jr., an event both Republicans and Democrats repeatedly compared to America's favorite pastime. It didn't seem like much of a contest at all.

"It's a little dangerous to play baseball with you," Sen. Joe Biden, D-Del., told Roberts, as he began his questions. "It's like pitching to Ken Griffey."

Biden's metaphor was all wrong. Roberts is clearly a big-league player in his field, but Griffey, the Cincinnati Reds outfielder, has to try to hit the ball to win the game. Roberts, by contrast, seems to have already won. He spent the day stepping back from the plate, ducking and dodging. With furrowed brow and earnest demeanor, he declined to answer question after question. Even his wife, Jane, appeared to fall into a trance, repeatedly fighting back yawns and drooping eyelids.

Does Roberts believe in a right to privacy when it comes to abortion and euthanasia?

"Those are issues that are coming before the court," Roberts said. "I don't think I should go further."

Does he believe Supreme Court sessions should be televised?

"It's not something I have a settled view on," he said.

At the time he was seeking a presidential nomination to the Supreme Court, why didn't he recuse himself from hearing a case that involved the White House?

"That, again, is a question I can't answer."

What does Roberts think of Moore v. East Cleveland, a landmark 1977 case that Justice Ruth Bader Ginsburg spoke about at her confirmation hearing?

"I think nominees should draw the line where they feel comfortable," Roberts said.

Biden, whose smile broadened as his frustration grew, protested to Judiciary Committee chairman Arlen Specter. "He's filibustering, Senator," Biden said. But Specter was unmoved, forcing Biden to relent. "Go ahead and continue not to answer," he told the nominee.

Without any clear answers, observers were left to keep score with only the smallest of hints. At the beginning of the hearing, Specter, a pro-choice Republican, held up an enormous blue poster, listing in tiny type the 38 cases dealing with Roe v. Wade in which the court had not overturned the decision. "Would you think that Roe might be a super-duper precedent?" Specter asked.

Roberts, of course, did not answer directly. But he did lay out his understanding of stare decisis, or the tradition holding that courts should follow the precedent of prior decisions. "It is not enough that you feel the case is wrongly decided," Roberts said, speaking broadly of what precedents may be overturned. Among the factors that must be considered, he said, are how "workable" the decision has proved to be, and whether the underlying assumptions of the decision still hold. Overturning precedent, he said, results in a "jolt to the legal system," though sometimes it is "a price that has to be paid." In other words, he did not rule out overturning Roe v. Wade, but he suggested he would not take such an action lightly.

On other issues he was more direct, arguing that he did not mind commenting on those few cases he did not believe would come before the court again. He said he believed the Constitution does contain the right to privacy, even though it is not explicitly spelled out. He said he agrees with a decision, Griswold v. Connecticut, that says adults have the right to choose to use contraception. He said he agreed with the decision in Brown v. Board of Education, which outlawed segregation by ruling that separate facilities violated the equal protection clause.

Roberts refused, however, to address with any clarity the role he sees for the federal government on an array of legal issues, especially concerning the regulation of state and local activity. "My approach has been a practical one, not an ideological one," Roberts said. "The rule of law, that's the only client I have as a judge."

Sen. Patrick Leahy, D-Vt., said he wanted to make sure Roberts was not a "Korematsu justice," rhetorical shorthand for a judge that agrees with the 1944 decision, Korematsu v. United States, which approved of the internment of Japanese Americans during World War II simply because of their ancestry. Roberts, staying true to form, did not directly respond to Leahy's line of inquiry. He did at least suggest that he would have a hard time imagining a modern-day argument for the imprisonment of Americans solely on the basis of race, or sex or ethnicity.

A few questions were so fawning that Roberts did decide to go ahead and swing away. Sen. Jon Kyl, R-Ariz., lobbed the biggest softball of the day, offering the self-described "modest" judge a chance to brag. Was it really true, Kyl asked, that Roberts had argued a case before the Supreme Court on two days' notice and on the same day he argued a case in the District of Columbia Circuit?

"That's how it happened," Roberts said.

And did Roberts still win both cases?

"The court got it right in each case."

If Democrats gained any ground over nearly nine hours of questioning, it was only metaphorical. Biden challenged Roberts' description of judges as baseball umpires, who simply call balls and strikes and don't "pitch or bat." "Much as I respect your metaphor," Biden said, "it's not very apt, because you get to determine the strike zone. The founders never set a strike zone." Roberts offered no protest.

It was late in the game, but Kay Daly, of the conservative Coalition for a Fair Judiciary, switched to boxing for her assessment of Sen. Dianne Feinstein's grilling of Roberts, which had focused on his views on women's rights. "I don't think she laid a glove on him," Daly said.

But the baseball analogies kept coming. "Today was a home run," said Andrea Lafferty, of the Traditional Values Coalition, as the afternoon wore on.

It was enough to make one thankful for the start of football season.

By Michael Scherer

Michael Scherer is Salon's Washington correspondent. Read his other articles here.

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