September 13, 2005,
Back in 2003, when John Roberts was approved by the Senate Judiciary Committee on his way to a seat on the U.S. Court of Appeals for the District of Columbia, just three Democrats Edward Kennedy, Charles Schumer, and Dick Durbin voted against him. Now, two years later, with Roberts again before the committee, nominated to be chief justice of the Supreme Court, the question is not whether Kennedy, Schumer, and Durbin will vote against him again. That's a given. The question is whether any committee Democrats the ones who once approved his nomination can be persuaded to vote yes on Roberts a second time.
And the short answer seems to be at least for now probably not. In the hour before the Roberts hearing began Monday, no fewer than three well-connected Republicans confided that, while they remain confident that Roberts will be confirmed, they believe he will likely end up making it through the committee on a straight party-line, 10 to 8 vote. "That's not what I want to see," said one GOP insider. "But that's what I think could happen."
That certainly doesn't mean Roberts would not be confirmed in the full Senate, but it does suggest that recent stories about Democrats being too dispirited to mount a vigorous opposition to Roberts were greatly, greatly exaggerated. And whether or not an ugly fight happens, committee chairman Arlen Specter certainly got things off to an ominous start Monday when he told Roberts that the beautiful old room in which the hearing was being held, the Senate Caucus Room, had been the site of many famous gatherings in the past: the Titanic sinking investigation in 1912; the Teapot Dome hearings in 1923; the Army-McCarthy hearings in 1954; the Watergate hearings in 1973, and the Iran-Contra hearings in 1987.
And more. "This chamber still reverberates with the testimony of Judge Bork in 1987," Specter continued, looking at Roberts. "And it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991."
Great. As Specter reeled off the list of horrors, Roberts listened impassively, undoubtedly hoping that the Roberts hearings of 2005 would not be added to that lineup.
When Specter finished, the ranking Democrat on the committee, Sen. Patrick Leahy picked up the disaster theme. "Today, the devastation and despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government," Leahy said, although no one in the room had suggested not having a federal government. Getting back to the subject at hand, Leahy recited a shopping list of concerns about which Roberts will be questioned, making it clear that Roberts will face heavy and repeated questioning about the issues of privacy and civil rights.
Up until that point, the hearing, while a bit off-key, did not have the starkly adversarial quality that is the hallmark of so many Judiciary Committee meetings. That changed shortly thereafter when Utah Republican Sen. Orrin Hatch took the microphone. He told the story of a Court nominee from his home state who, in 1922, was both nominated by the president and confirmed by the Senate in the same day. "There was no inquisition, no fishing expedition, no scurrilous and false attack ads," Hatch said, suggesting, of course, that the Roberts case will be characterized by has already been characterized by inquisitions, fishing expeditions, and scurrilous and false attack ads.
Then Hatch raised what would become the major issue of the day: Which questions from the committee would Roberts have to answer, and which could he legitimately refuse to answer? "I'll be the first to admit that senators want answers to a great many questions," Hatch said. But "nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues" a reference to a phrase Justice Ruth Bader Ginsburg used to refuse to answer dozens of questions at her confirmation hearing in 1993. "Some have said the nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people," Hatch continued. "These might be catchy sound bites, but they are patently false."
After that, several Republicans on the committee echoed Hatch's argument. "I'm hoping we won't see a badgering of the nominee about how he'll rule on specific cases and possible issues that will or may come before the Supreme Court," said Iowa Republican Sen. Charles Grassley. "And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during their confirmation hearings."
"It is not appropriate for a senator to demand a nominee's view on issues that are likely to come before the court," said Arizona Republican Sen. Jon Kyl. "Not only would it violate this committee's standards and procedures for a nominee to answer questions about issues that may come before him as a judge, it would also be unethical for the nominee to answer such questions."
And so on. The GOP position was clear: Roberts shouldn't have to answer any questions that he believes would be too revealing about cases that might come before him on the Court. While that was a perfectly legitimate point and Republicans were correct about the Ginsburg precedent it made for an odd, strikingly defensive way for Republicans to begin Roberts's confirmation. And it made an easy target for Democrats who, with impressive message unity, stepped outside the Caucus Room to talk to the press after the hearing was over.
"I was somewhat troubled today by virtually every one of our Republican colleagues urging the nominee not to be responsive to questions," said Kennedy. "It is very important for the American people to understand who this justice is all about."
"I was surprised by my colleagues on the other side of the aisle," said Schumer. "If all you can say about a nominee is that he shouldn't answer questions that's not the strongest argument starting out. Of course he should answer questions."
"I think we have a duty not to come and say, 'Don't answer any questions' or "We won't ask any questions,'" said Leahy. "All Americans have a right to know who's going to be on the Supreme Court and what their views are."
Texas Republican Sen. John Cornyn was standing behind the Democrats as they spoke, and when it came his time to talk, he attempted a bit of damage control. "Believe me, Judge Roberts will be asked a lot of questions, and he will give a lot of answers," Cornyn said. "The one thing I don't expect him to do, and that no previous nominee has ever been asked to do, is to make specific commitments about how he will rule in cases that are likely to come back before the U.S. Supreme Court."
Byron York, NR's White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.