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 fourth day of the Senate confirmation hearings for US Chief Justice nominee John Roberts, and suggests that although the hearings may have provided few key insights into the nominee, they have proved to be an important demonstration of democratic process…

After more than twenty hours in the hot seat, John G. Roberts, Jr. finally has concluded his testimony before the Senate Judiciary Committee, leaving even many of his most severe critics expressing admiration for his thoughtful and deft responses to questions about a multitude of legal issues. Although Roberts provided few new insights into his thoughts about major constitutional questions, he helped to assuage fears that he is a right-wing ideologue who would roll back civil liberties and significantly diminish federal power. His testimony helped to confirm the widespread impression that has an open mind, a sanguine temperament, and the capacity for wisdom, important attributes in any judge and ones absolutely critical in a Chief Justice. His powerful but soothing presence also dispelled doubts, if doubt there had been, that he would facilitate harmony among the Justices and administer the federal judicial system in a calm and efficient manner. The likelihood of the Senate’s confirmation of his nomination without significant opposition or delay now appears virtually certain.

Like the extensive hearings on the confirmation of other Supreme Court nominees during the past forty years, the hearings on Roberts also provided what Senator Jon Kyl described this week as “great civics lesson.” For four days, senators, the nominee, and sundry witnesses discussed legal issues in front of the nation, enlightening millions of Americans and creating a permanent record of the pulse of constitutional law at this moment in history.

In addition to enabling the Committee and the nation to take the measure of Roberts as a potential Chief Justice, the hearings also provided the senators with a unique opportunity to express their ideas, concerns, and advice about a remarkably broad array of legal issues. In particular, senators repeatedly reminded Roberts of the importance of judicial humility and proper respect for coordinate branches of government, and admonished him to remember the human dimensions of the cases that come before the Court.

It is important to consider what the hearings did not do and probably could not have done.

While hearings on judicial nominees often are assumed to have the principal purpose of eliciting insights into how nominees might rule on particular issues, these hearings are almost useless in this regard. Roberts, like all other Supreme Court nominees whose views the committee has tried to plumb, properly refused to comment about issues that are likely to come before the Court since such comments could create the impression of bias. Only on the subject of abortion did Roberts’s testimony offer some potentially significant insights into how he might rule on a particular issue, for Roberts affirmed his belief in a constitutional right to privacy and expressed at least theoretical agreement with the principles of stare decisis that have helped to preserve Roe v. Wade. Even this, however, was not enough to assuage the fears of many pro-choice activists or shake his support among most pro-life advocates. Roberts’s expression of belief that the Constitution may change with the times also provided at least hint that Roberts’s views are consistent with those of the majority of the present Court, although the level of generality of his remarks offers no real clues about how he would rule on any particular issue.

Roberts also provided several reminders to the committee that the Court often is forced to make law because Congress leaves gaps in statutes and that unpopular judicial decisions often are easily remediable through legislative action. In particular, Roberts responded to criticism of the Court’s recent controversial takings clause decision, Kelo v. City of New London, by pointing out that the Court’s holding that local governments have broad power of eminent domain does not require local governments to exercise that power. Although the senators already were aware of these points, his reminders might be useful.

Perhaps the most useful exchanges at confirmation hearing involve a nominee’s thoughts about the process of adjudication and judicial administration, issues that are particularly relevant to the confirmation of a Chief Justice. In responses to questions by Senator Russell Feingold about the Chief Justice’s power to assign opinion writing when he is in the majority, Roberts stated that he disapproved of making assignments “as a way to promote a particular view or agenda.” When Feingold asked if Roberts would ever change his vote in order to be able to assign an opinion (as Chief Justice Warren Burger is rumored to have done), Roberts flatly declared that he regarded this practice as inappropriate and would not do it. Roberts explained that such tactical uses of the assignment writing power “causes tension on the court” and interferes with the Chief Justice’s ability to promote “cohesiveness and collegiality.”

In response to Senator Arlen Specter’s question about whether he would try as Chief Justice to avoid the proliferation of concurring opinions that often creates confusion about the Court is saying, Roberts acknowledged the importance of “clear guidance from the Supreme Court.” He stated that “it’s a responsibility of all the justices, not just the chief justice, to work toward an opinion of the court” and remarked that a justice who is considering a concurring opinion should ask himself, “What benefit is this serving? Why is it necessary to state this separately?” Roberts also affirmed the importance of writing “crisply and efficiently.”

But while these observations are interesting and may represent norms to which a Chief Justice should aspire, they are hardly surprising and there is no guarantee that Roberts will honor them.

Similarly, even if Supreme Court nominees were willing to comment about specific legal issues, their comments would have little utility for the Senate since they could make no commitment that they would decide cases in this manner after their confirmation. A disingenuous nominee could with impunity tell the committee whatever he or she felt she needed to say to secure confirmation, while an honest nominee could change her mind after her confirmation. There are many examples of Justices whose performance on the Court has defied the expectations of the Presidents who nominated them and the Senates that confirmed them. The chances that a justice will confound expectations about his or her performance is especially great since most justices serve for such a long time. As Yale Law professor Alexander Bickel once famously observed, “you shoot an arrow into a far distant future when you appoint a justice, and not the man himself can tell you what he will think about some of the problems that he will face.”

Moreover, confirmation hearings rarely, if ever, generate any fresh insights into constitutional issues. Senators usually ask nominees questions that are considerably less complex than a professor would ask students in an introductory constitutional law course, and the circumspect responses of the nominees rarely goes beyond rote recitation of the facts and holdings of Supreme Court decisions and a basic exposition of elementary constitutional princ
iples. The hearings often resemble a high school civics class more than a law school seminar. While Roberts’s extensive testimony demonstrated that he is well versed in the law, none of his responses demonstrated original or brilliant thinking. Roberts may be an extraordinarily bright man, but the questions generally did not call for brilliant answers, and anything too intelligent or original could have provoked the sort of controversy that Roberts, like all Supreme Court nominees, wanted to avoid.

Hearings also serve can serve an important function by providing an opportunity to explore charges of ethical misconduct. Indeed, this was the primary purpose of testimony by nominees from 1925, when Harlan Fiske Stone became the first nominee to testify, until the 1970s, when the hearings began to focus upon the legal philosophies of the nominees. In most instances, however, the Senate’s questions to nominees about misconduct have failed either to dispel the suspicions of the nominee’s critics or shake the faith of his supporters.

The only ethical controversy involving Roberts has arisen out of his failure to recuse himself from Hamsden v. Rumsfeld, in which a three-judge panel of the appellate court on which Roberts sits unanimously rejected a challenge to the Bush Administration’s practice of trying terrorist suspects before military tribunals rather civil courts. Since Bush met with Attorney General Alberto Gonzales to discuss the possibility of his nomination to the Supreme Court before the Court of Appeals decided the case, some legal scholars have argued that he ought to have recused himself rather than risk the perception that he may have voted in favor of the Administration on this high profile issue in order to bolster his chances for promotion. Since a legal challenge to Roberts’s participation in the case is presently pending, Roberts properly refused to respond to questions from senators concerning the reasons for his failure to recuse himself.

Evaluated in the context of these limitations, it becomes clear that the hearings have little substantive value.

This does not, however, detract from their immense value as an important ritual of democracy. This unique opportunity for dialogue between senators and a nominee who is likely wield immense power on the Supreme Court for decades to come is one of our nation’s most important rites. Even though the simple verities about constitutional law that the senators and the nominees espouse during these hearings fail to offer any original or brilliant insights into constitutional law or the thoughts of the nominee, the dialogues between the senators and the nominees provide a litany of the most fundamental values upon which American democracy is based. It useful for the senators, the nominees, and the nation to renew their fidelity to these values by hearing them recited at confirmation hearings each time a member of the Court is appointed.