In a JURIST Forum special, JURIST Contributing Editor William G. Ross, Professor of Law at Samford University's Cumberland School of Law in Alabama, reviews the second day of the Senate confirmation hearings for US Chief Justice nominee John Roberts, and suggests that the eleven hours of testimony were as remarkable for the key questions Senators did not ask as for the many questions they did…

John G. Roberts, Jr. was as outspoken and forthcoming as any Supreme Court nominee in the nation's history in his testimony before the Senate Judiciary Committee during the second day of its hearings on his nomination to become Chief Justice of the United States. Although Roberts, like other Supreme Court nominees, rightly refused to answer many questions on the ground that he should not reveal his thinking about issues that might come before the Court, he provided detailed and thoughtful responses to questions concerning about a wide array of legal issues. The consistent moderation of Roberts’s comments and his repeated emphasis on fidelity toward precedent and the importance of deciding cases on the basis of facts rather than ideology should help to dispel fears that he is some kind of fanatic. If there was any disappointment during an exhaustive eleven hours of hearings, it was that senators neglected to probe Roberts’s ideas about more issues on which he could have provided interesting insights, and that senators sometimes failed to ask effective follow-up questions in response to Roberts’s answers.

Much of the day was devoted to probing Roberts’s thoughts on Roe v. Wade in an effort to elicit hints (for senators knew that they could hope for no more than hints) about whether he would vote to overturn or add significant new restrictions to the Court’s decisions concerning the right to abortion. Like every other nominee since Roe was decided in 1973, Roberts naturally refused to reveal how he would vote on abortion issues. But he went about as far toward affirming Roe as any pro-choice advocate could hope to hear from a Bush nominee. For example, he squarely expressed agreement with the Court’s 1965 decision in Griswold v. Connecticut, which laid the foundation for Roe by striking down a law that prohibited the use of contraceptives by married couples. Roberts also had no trouble in finding merit in the Court’s use of stare decisis as a basis for re-affirming Roe in its 1992 decision in Casey v. Planned Parenthood. In particular, Roberts was quick to agree with Senator Arlen Specter that the overturning of any precedent would tend to unsettle the expectations of citizens and undermine the Court’s legitimacy.

Roberts’s emphasis on the importance of precedent must have won him points with both liberal and conservative senators. Adherence to precedence would require fidelity to the Court’s decisions expanding civil liberties, particularly in cases involving abortion and homosexuality. At the same time, Roberts’s emphasis on precedent would help to ensure that he would not support further expansion of such liberties or help to “discover” new ones.

Roberts also was surprisingly unequivocal in response to questions about the existence of a right to privacy. Although he naturally affirmed his belief in a right to the types of privacy specifically spelled out by the Constitution, he at first was willing to say, in response to questions by Specter, only that the Court has recognized that the due process clauses of the Fifth and Fourteenth Amendments accord a substantive right of privacy over matters that the Constitution does not explicitly mention. Later, however, Roberts explicitly agreed with Senator Joseph R. Biden that the Fourteenth Amendment provides, in Biden’s words, “a liberty right to privacy that extends to women.” Various senators who queried Roberts about Roe seemed not to fully appreciate this admission and they passed up opportunities to press Roberts more fully about his views about the scope of substantive due process, a key issues in cases involving many controversial issues, including abortion, parental rights, and homosexuality. Only Senator Charles E. Schumer seemed to recognize that Roberts’s endorsement of Griswold had important implications for many controversial privacy issues, but Roberts refused to permit Schumer to draw him into a discussion of these issues. Moreover, Roberts’s expression of disapproval of the Court’s notorious 1905 decision in Lochner v. New York, striking down New York’s law limiting the hours of bake shop workers, could have provided an excellent opportunity to explore Roberts’s views on substantive due process, along with any differences in the standards of review for economic and non-economic legislation. But senators missed the cue.

Senators also failed to press other points. Although, for example, Roberts twice recited the Court’s position on the level of scrutiny to which courts should subject gender discrimination, no senator tried to elicit Roberts’s own views on the appropriate level of scrutiny, even though the Supreme Court’s position on this question is not settled.

In addition to his remarks about the right to privacy, Roberts also might have helped to soothe the fears of civil libertarians in his declaration, in response to Senator Patrick J. Leahy’s question about whether the president as commander in chief has the power ignore congressional ban on torture, that “no one is above the law under our system, and that includes the president. The president is fully bound by the law.” Similarly, Roberts flatly told Senator Russell D. Feingold that “the Bill of Rights doesn’t change during times of war.”

Roberts’s repeated emphasis on judicial restraint and his reluctance to overturn congressional legislation may have won him points with both liberals and conservatives, albeit for different reasons. On several occasions, Roberts had to remind senators that the Court sometimes must interpret rights narrowly because Congress itself has failed to provide statutory support for rights, and not because the Court has any political or constitutional objection to such rights.

As expected, Roberts was questioned in some depth by several senators about his views on federalism. Roberts steadfastly rejected repeated attempts by Schumer to offer his views on the Supreme Court’s broad interpretation of the commerce clause in its 1942 decision in Wickard v. Filburn since Roberts contended that it remains controversial. He likewise flatly refused to answer Schumer’s question about whether Congress can regulate commerce that does not involve an article that moves across a state line, and he generally resisted similar attempts by Senator Dianne Feinstein to have him draw precise lines in defining interstate commerce. Roberts was willing to say little beyond making the obvious empirical point that the Court in its recent decision in Gonzales v. Raich demonstrated that the Court’s 1995 Lopez decision and its Morrison decision in 2000 were limited in scope and did not require a return to the highly restrictive view of interstate commerce that the Court had espoused until 1937.

With sixteen of the eighteen members on the committee having asked their questions, it does not appear that the questions at Roberts’s confirmation hearing will have been as wide-ranging as questions at most other confirmation hearings during the thirty years since intense questioning of Supreme Court nominees became customary. With only thirty minutes allotted to each senator, committee members perhaps preferred to concentrate on a narrow band of issues. In contrast to other confirmation hearings during the past thirty years, senators asked
relatively few questions about separation of church and state and the free exercise of religion. There were very few questions about criminal procedure, a hot button topic in many earlier confirmation hearings. Although several senators asked questions about voting rights, often in reference to Roberts’s controversial involvement in voting rights cases during his years in the Reagan administration, senators all but ignored affirmative action. In view of the recent national debate over the removal of life support for terminally ill persons, it is likewise surprising that there was almost no mention of this issue. It is also strange that senators practically ignored the Court’s recent controversial recent takings clause decision, Kelo v. New London; Senator Jon Kyl criticized Kelo, but did not ask Roberts about it. While Roberts was briefly questioned about the constitutional protection of pornography, no senator asked him about his views on the constitutional dimensions of hate speech.

Like most other nominees, Roberts was willing to express unequivocal support for such bedrock decisions as Marbury v. Madison and Brown v. Board of Education. Roberts explained that he was willing to express his opinion on past decisions, including Griswold, if he did not believe that the issue involved in the case was likely to come again before the Court. In contrast to Ruth Bader Ginsburg, who explicitly stated during her confirmation hearings that the Court wrongly sustained the forced relocation of Japanese-Americans in its 1944 Korematsu decision, Roberts was just a trifle more circumspect, saying that he could not see what argument the government could make in favor of the internment of an ethnic group for security reasons.

Although senators refrained from asking Roberts to name a judicial role model, a question that they have asked many other federal judicial nominees, Roberts made a point of expressing admiration for Justice Robert H. Jackson’s willingness to take a narrower view of presidential power during his years on the Court than he had espoused as Franklin Roosevelt’s attorney general. Senators were not slow to recognize that Roberts seemed to be assuring them that his opinions as Chief Justice might differ from the controversial positions on civil rights that he advocated as an official in the Reagan Administration. In response to numerous questions about memoranda that he wrote during those years, Roberts generally explained that he was simply crafting arguments that reflected the administration’s position and which did not necessarily reflect his own views. To the amusement of anyone who heard his testimony, Roberts was willing to unequivocally repudiate only one position that he advocated as a young man — term limits for federal judges.

Although Roberts expressed admiration for Rehnquist, for whom he clerked, he pointedly remarked that “I will certainly be my own man.” Explaining that he resisted labels, Roberts explained to Senator Orrin G. Hatch that he prefers “to be known as a modest judge” who respects precedent. “I do not have an overarching judicial philosophy,” he declared. In his dialogue with Kyl, Roberts may have been thinking of himself when he recalled how Judge Henry Friendly, for whom he also clerked, took delight in confounding efforts to peg him as a liberal or a conservative.

Like other nominees, Roberts also repeatedly emphasized that he would keep an open mind. In his dialogue with Senator Jeff Sessions, for example, Roberts explained that he and every judge has sometimes changed his “original view” about a case after reading briefs or hearing the views of fellow judges.

Senators devoted too little time to questions about the role of the Chief Justice. This is unfortunate, particularly since Roberts, as a former Rehnquist clerk, might have some interesting thoughts on such questions and he could feel more free to express these than to answer questions about specific legal issues. Aside from a few remarks from Senator Lindsey O. Graham about the importance of a Chief Justice’s ability to maintain control over judicial conferences, there was no attention to how the Chief might facilitate efficient and amicable relations among Justices. Senators also devoted little attention to other important issues, including the Court’s control over its docket and the procedures for granting certiorari petitions. The televising of Supreme Court arguments was one of the few issues involving Supreme Court administration about which Roberts was questioned. Roberts professed to have an open mind on the subject and assured the committee that he would explore the issue with his colleagues if he were confirmed.

Senators likewise failed to elicit Roberts’s views about his role as the chief administrator of the federal court system. In particular, it would have been interesting to hear Roberts’s thoughts concerning the workload and compensation of lower federal judges, both of which were of keen interest to Rehnquist. The only substantive question was Mike DeWine’s question about the criteria that Roberts would employ in discharging his duty to appoint judges to the eleven-member Federal Intelligence Surveillance Administration court, to which intelligence agents must apply for wiretaps or search warrants involving terrorists or foreign spies.

Aside from questions about stare decisis, which were really only intended to probe Roberts’s substantive views, senators likewise asked too few questions about judicial process and decision-making. One of the few exceptions was Kyl’s question about the Court’s consideration of the laws of other countries in its recent decision in Roper v. Simmons, which held that the state cannot execute a person who was a minor at the time he committed a crime. In one of his most revealing statements of the day, Roberts expressed significant reservations about reference to foreign law in American constitutional decisions. He explained that the use of foreign law denigrates the American political process since the foreign judges who make law are not appointed as part of that process by a democratically elected and accountable to the American President and Senate. Roberts also remarked that reliance on foreign precedent does not limit the discretion of judges in “the way that relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want.”

Although many senators seemed more interesting in making speeches than in asking questions or listening to Roberts’s answers even when they asked questions, their often protracted comments served a useful purpose. Hearings on the confirmation of federal judges provide a unique opportunity for direct communication between the legislative and judicial branches of government, permitting senators to directly convey their thoughts and concerns to members (or soon-to-be members) of the federal judiciary. The televised confirmation hearings on U.S. Supreme Court nominees provide a marvelous civics lesson for countless persons, both in the United States and abroad.