Waiting to learn what the judge believes

September 05, 2005|By Ellen Goodman

BOSTON - How did we end the summer on such a prickly little piece of the political landscape - stuck between a Roberts and a hard place? We've spent months pouring over 60,000 pages from the National Archives and reams of personal profiles for clues about how Judge John G. Roberts Jr. would rule on the highest court in the land. And all we got from this paper trail is a handful of confetti.

The record shows him arguing both for and against affirmative action, for and against environment regulations. As a lawyer for Bush I, he wrote that Roe vs. Wade should be overruled. As a nominee for the Court of Appeals, he called it settled law.

On the one hand, he characterized equal pay for comparable work for women as a socialist plot and wanted to water down the Voting Rights Act. His amusement at a woman who encouraged housewives to go to law school made Phyllis Schlafly call him a "smart alecky" young bachelor.

On the other hand, he also wrote a memo suggesting Bob Jones III go soak his head. And as a private lawyer, he advised a gay rights group on how to put its best case forward in court.

But all in all, we still know less about the brand of conservatism he favors than the brand of ice cream: chocolate chip.

This has left any advocacy group or senator to the left of the Federalist Society marooned on a spit of no-win terrain. As NARAL Pro-Choice America discovered after its blunderbuss first ad, only right-wing groups can unfairly "Swift boat" a candidate. If the groups and politicians dissipate energy and money fighting a decent nominee, it will make the next fight harder. If they don't and he turns out to be another Antonin Scalia, supporters will be unforgiving.

The bottom line is that barring some last-minute photo of Judge Roberts popping out of a cake at a KKK rally smoking crack, he's going to be confirmed. And if he were magically derailed, who would be next? Edith Jones? Michael J. Luttig? Judge Roberts might turn out to be as far right as People for the American Way says. But he also might be as good as it gets under this administration.

So having been pressed between a Roberts and a hard place by the administration's political mapping, the only way forward might be with a leap of imagination. A leap that says the Senate will only have done its job and the nominee will only have won his job when we know who Judge Roberts is and what he believes.

Judge Roberts might have no opinion on issues that will face the court in the future, from stem-cell research to technology. A good jurist can't judge a case he hasn't heard. But judges aren't apolitical robots. He knows what he thinks about, say, the basic right to privacy, the powers of a president in wartime, the constitutional balance of church and state. And we know that he knows.

Senate Judiciary Committee Chairman Arlen Specter once wrote that senators "should resist if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues." How did this get to be seen as a hopelessly naive idea?

Let us assume for a minute that this is not a game of "gotcha." In that case, the only ground to be gained is common ground, a shared understanding of a man who will never again have to face the public.

Judge Roberts has nothing to lose by elegantly evading controversial questions. But there is something to win by being direct and open. He can defend the shrinking turf on which the Supreme Court of the United States itself must rest: respect.

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

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