Roberts' respect for court demands openness in confirmation hearings

July 25, 2005|By Ellen Goodman

BOSTON - In the end, I'm hoping for his "deep regard" for the Supreme Court. I'm rooting for what John G. Roberts Jr. described as "a lump in my throat whenever I walked up those marble steps."

President Bush's choice for the Supreme Court is no Sandra Day O'Connor. If Justice O'Connor was a moderate who became a swing vote, Judge Roberts is only ambidextrous on the squash court. He plays jurisprudence on the right side.

It's no surprise that Mr. Bush picked this man with impeccable credentials. Impeccable conservative credentials. Mr. Roberts clerked for Justice William H. Rehnquist, lawyered for Ronald Reagan and argued 39 cases before the Supreme Court. Did anyone actually expect this president to pick a soul mate for Ruth Bader Ginsburg?

Nevertheless, the Washingtonian who knows full well the drama of this moment chose to introduce himself by describing his respect for the institution as a lump in the throat. Compare that to Antonin Scalia, who entered that Olympian building with boxing gloves.

But if that reverence for the court is more than boilerplate patriotism, it comes with a responsibility to be truly open at Senate hearings.

It's not a secret that the Supreme Court remains one of the last trusted institutions. Nor is it a secret that the trust is eroding. After endless battles over religion and gay rights and, of course, abortion, too many people now regard the court's decisions as the 5-4 sum of its individuals' political beliefs. For too many, the Supreme Court is a stage for Supreme Politics, and an opinion from the bench is treated as if it were an opinion on a talk show.

The common wisdom is that Judge Roberts was chosen for his long rM-isumM-i and short paper trail. He has no damning tissue paper stuck to his shoe. Indeed, on the issue of abortion there is only confetti.

In 1991, he was one of six government lawyers who wrote a brief saying Roe vs. Wade "was wrongly decided and should be overruled." In 2003, while being confirmed to the appeals court, he described himself as nothing but a lawyer advocating for a client. Roe was the "settled law of the land."

I am not suggesting that nominees should announce how they would rule on cases they haven't even heard. No one should ask Judge Roberts about the forthcoming New Hampshire parental consent case or the partial-birth abortion ban. But any would-be justice should share his thoughts about privacy rights and abortion rights. Surely, dodging is disrespectful. It breeds cynicism - or is it realism? - that judges can't say what they think until they're on the bench.

Today, the Roberts weathervane points to confirmation. He is on the opposite side of the bell curve of likability from Robert H. Bork. He's described as brilliant and affable even by opponents, and Republicans have the votes. The groups geared for battle may offer up bumper sticker opposition and emergency alerts and talking points, but this relative unknown seems likely to be our 109th justice.

But that's all the more reason why Judge Roberts himself should willingly let a querulous, uneasy American public into his thought process and beliefs. This is when a candidate can cut through the jargon, let us know how he sees the Constitution, how he defines "legislating from the bench," how he defines judicial conservatism itself: Does it mean maintaining a precedent or upending it?

Senators are often criticized for asking questions, while the candidates are expected to avoid them. The question this time is not whether Judge Roberts is unfairly scrutinized. It's whether he'll expansively and honestly let us into the mind of a 50-year-old who may serve for life. It's about trust and respect and whether the next generation will approach those marble steps with a lump in the throat or a shiver down the spine.

Ellen Goodman is a columnist for The Boston Globe. Her column appears Mondays in The Sun.

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