Senate's Kabuki Dance With Roberts

By William Fisher

After three days of hearings on the confirmation of Judge John G. Roberts to be the seventeenth Chief Justice of the United States, what the public has learned is that the nominee appears to be as much Talmudic scholar as jurist.

In the relatively few questions he did not duck altogether by saying they related to issues likely to come before the Court, or by claiming the views he wrote were those of the administrations he has worked for in the past, Roberts responded even to most specific questions with an "on the one hand, on the other hand" approach.

The result, as put by Sen. Joseph Biden, Democrat of Delaware, is that, "You have managed to convince Sen. Brownback that you're on his side, and you have managed to convince Sen. Kennedy you're on his side."

Brownback is a conservative, Kennedy a liberal.

"We're rolling the dice with you, judge," Biden said, "because you won't share your views with us. You've told me nothing in this Kabuki dance. The public has a right to know what you think."

"You've being less forthcoming with this Committee than any nominee who has ever come before us," said New York Democratic Senator Charles Schumer. "This process is getting more and more absurd," he added.

Sen. Patrick J. Leahy of Vermont, the committee's ranking Democrat, said on CNN, "If the nominee had been more forthcoming, we'd be done by now."

Questions put by Sen. Leahy, illustrate the point.

Leahy raised the issue of increasing government secrecy, asking whether the media should have access if "it thinks the government screwed up" in its handling of Hurricane Katrina.

Roberts responded: The media is in a position to make information more widely available to the public, but there must be a balance between the government's interest and the public interest.

Leahy then turned to the issue of capital punishment, asking whether a prison inmate on death row was entitled to a hearing if he claimed he had new exculpatory evidence to present.

Roberts asserted it would be unconstitutional to execute an innocent person, but added that questions might arise if the prisoner had already filed multiple appeals.

Leahy recounted the story of a man who had been on death row for 16 years and filed multiple appeals, before a group of journalism students from Northwestern University found new evidence that caused the prosecutor to dismiss the charges.

Leahy quoted from Roberts's testimony during his previous confirmation hearings for appointment as a federal appeals court judge. "You said 'That shows the system is working'. That really worries me," Leahy said, adding he thought it was evidence that the system was broken.

Senators continued to try to lure the nominee into answering direct questions directly, but without much success.

Republican Sens. Tom Coburn of Oklahoma and Sam Brownback of Kansas, two of the committee's most conservative members, questioned Roberts on the seemingly ever-present abortion issue.

Coburn, an obstetrician, asked the nominee if he agreed that if death is the absence of a heartbeat and brain activity, then life must be their presence. Brownback asked for Roberts's view on when life begins.

Roberts declined to answer both questions, saying the issues might well come before the Supreme Court.

That has been his response to a long litany of questions for the past three days. The questions involved such issues as civil rights, end-of-life decisions, HIV-AIDS, Congressional power, terrorism, freedom of information, abortion, guns in schools, the Geneva Conventions, affirmative action, separation of church and state, detention of alleged terrorists, and dozens of others.

Democrats were frustrated. Conservatives, including those who failed to get answers to their questions, were lavish in their praise of the nominee.

Arguably, the only exception among the Committee's Republicans was the chairman, Pennsylvania Sen. Arlen Specter, a former prosecutor knowledgeable about Constitutional Law.

Specter has been visibly angered by a recent Supreme Court ruling that appeared to question the reasoning powers of members of Congress. "We don't like being treated like children," he told the nominee.

"I don't think the court should be the Congress's taskmaster," Judge Roberts said, declaring that the Constitution is the true taskmaster.

The issue of congressional versus judicial power was a strong theme underlying much of the proceedings.

It was often expressed as anger against "judicial activism", by which senators mean "legislating from the bench", thus usurping congressional authority.

But this issue was buried in contradiction. For example, while Sen. Coburn said he was concerned about "activist judges", he was also pressing for the Supreme Court to overturn Roe v. Wade, the 1973 case that affirmed a woman's right to have an abortion.

Thursday, the Committee will hear from private individuals and organisations that are supporting or opposing Roberts's confirmation.

Roberts is currently a judge on a federal court of appeals -- a position to which the same Senate committee confirmed him two years ago. He was chosen to be an associate justice of the Supreme Court, but then nominated to be Chief Justice upon the death of Chief Justice William H. Renquist.

Barring a major misstep or some new and shocking revelation, Roberts is widely expected to be confirmed. Democrats may be saving their bigger guns for Pres. George W. Bush's next Supreme Court nominee, who will replace the retiring Justice Sandra Day O'Connor, and who may well be the "swing vote" on a closely divided court.