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 third day of the Senate confirmation hearings for US Chief Justice nominee John Roberts, and suggests that while the nominee has so far shown humility, but he has not yet demonstrated heart…

During more marathon testimony on the third day of the Senate Judiciary Committee’s hearings on his nomination, John G. Roberts continued to discuss a wide spectrum of legal issues in about as much detail as he could without improperly revealing his opinions about specific questions that are likely to come before the Court. Although a few Democratic senators expressed exasperation over Roberts’s refusal to offer his views about specific legal issues, this could hardly have surprised them, since every Supreme Court nominee who has testified before the committee has remained similarly reticent. Roberts, however, genuinely appeared to surprise and vex some senators because he seemed more reluctant than most nominees to share personal thoughts and feelings that would help to demonstrate empathy with the problems of Americans, particularly those less fortunate than himself, who regularly look to the Supreme Court as a last resort for justice.

Throughout his testimony, Roberts repeatedly resisted opportunities to speak about his personal experiences or demonstrate that he had an understanding of the human dimensions of the numerous legal issues he has discussed. For example, Roberts, who was questioned at length about his work in helping to craft the Reagan Administration’s opposition to expansion of the Voting Rights Act, missed repeated opportunities to deflect criticism by roundly deploring the injustices created by racial discrimination. Although Roberts explained that voting is the cornerstone of liberty and expressed his opposition to racial discrimination, he could have done much more to disarm his critics and re-assure his supporters if he had infused his remarks with some sense of passion, perhaps through anecdotes that would demonstrate that he had personally witnessed racial discrimination or injustice.

Similarly, when Senator Dianne Feinstein implored Roberts to offer “your feelings as a man” about the difficulties that many terminally ill persons and their families experience in deciding whether to remove life support systems, Roberts offered only vague remarks that indicated no real experience or empathy with the problems of real-life people. In response to a similar question by Senator Joseph Biden, Roberts observed that a judge should not “incorporate his or her personal views into deciding issues of this sort.” Likewise, Roberts responded in the negative to Senator Charles Grassley’s question about whether a judge could consider his or her personal values and beliefs in adjudicating constitutional issues.

Although Roberts is correct that a judge should strive to decide cases upon the law rather than emotion or personal predilections, several of the Judiciary committee members who spoke yesterday, including some Republicans, seemed to agree with the numerous judges and legal scholars who believe that personal values and beliefs can and should influence judges. At the very least, a judge’s understanding of the human aspects of a legal problem can and should help to inform his or her judgment about the law. Such understanding is particularly important in adjudications before the Supreme Court, where there are nearly always strong legal arguments in favor of competing legal arguments and cases often turn on the policy preferences of Justices. Since the ideological bent of Justices and their personal philosophies influence the outcome of many Supreme Court decisions, senators have a need to know as much as possible about the personal ideals and ideas of Supreme Court nominees. Since it is improper for nominees to offer their opinions about specific legal issues that are likely to come before the Court, insights into their personal ideals help senators to determine whether nominees have the commitment to justice that is generally regarded as an essential criterion for the confirmation of a Supreme Court nominee.

Several senators expressed frustration over Roberts’s refusal to reveal more about his private feelings. Senator Dianne Feinstein, for example, declared rather plaintively that she wished to learn more about “Roberts, the man,” as opposed to “Roberts, the legal automaton.”

In contrast with Roberts, other recent Justices have shared personal feelings and insights with the committee, often without prompting from the senators. O’Connor, for example, told the committee during her confirmation hearings that abortion was “repugnant to me and something in which I would not engage.”Similarly, Ginsburg shared poignant anecdotes about her personal experiences with gender discrimination, Thomas spoke movingly about the discrimination and deprivations he suffered during his childhood as an African-American in the segregated South, and Souter made a point of recalling how he personally counseled a woman who was considering having an abortion. Other nominees also have sometimes been willing to share their views on public policy issues that are separable from legal issues. For example, O’Connor testified that she did not regret voting for capital punishment as an Arizona legislator, and Rehnquist testified at his first confirmation hearing in 1971 that the use of force at Kent State that resulted in the deaths of four students was “unwarranted and misguided.”

It is particularly important for Roberts to demonstrate some type of compassion or empathy since he has come from a privileged background. In his most forceful statement about his ability to understand the problems of litigants whose backgrounds differ from his own, Roberts told Senator Durbin that while his life had been “comfortable,” it had not been “isolated,” and that he has associated with “people of a wide variety of backgrounds.” Moreover, he explained that he has represented welfare recipients whose benefits had been cut off, criminal defendants who faced long prison sentences, antitrust plaintiffs, and environmental interests. He also told senators that he has been involved in a street law program for the past fifteen years.

Since deeds speak more loudly than words, Roberts’s representation of a diverse clientele and his record of pro bono work is more impressive than any pious expression of compassion for the nation’s dispossessed. But not every lawyer who represents disadvantaged clients comes to have an empathy for their problems. Some lawyers who represent such clients remain highly detached from their clients and treat their problems as mere legal abstractions. Roberts’s testimony does not indicate whether his representation of disadvantaged persons made him more sympathetic toward their fundamental problems. In order to appreciate justice, one must first have a sense of injustice. Not once during the hearings has Roberts provided any forceful indication that he has any passion about injustice.

Roberts’s claim that he had a “typical middle class upbringing” when in fact his background is distinctly upper middle class indicates that perhaps he is not fully aware of just how “comfortable” his life has been. Also troubling was his remark to Senator Feinstein that he expected to remain in touch with the lives of ordinary Americans through his children’s school activities. Feinstein immediately pointed out that the social circles in which his family moves are hardly likely to bring him into contact with the least fortunate
members of American society.

Roberts deserves credit for refusing to feign emotions that he lacks and for sparing the nation the type of tawdry and maudlin personal confessions that have become all too common among public figures. Nevertheless, Roberts’s testimony is troubling insofar Roberts has expressed little personal understanding of the ways in which constitutional issues involve the day-to-day problems of countless Americans.

Roberts has effectively demonstrated that he understands the importance of judicial restraint and judicial humility, and he has opened his head as freely as is proper in discussing legal issues. Perhaps in his final day of testimony, he will open his heart, too.