September 14, 2005,
At 8:00 P.M. Tuesday, just after Day Two of the John Roberts confirmation hearing ended 10 1/2 hours after it began Republican Sen. Orrin Hatch was leaving the Hart Building hearing room when he was asked, "Senator, what, precisely, did John Roberts say about Roe v. Wade today?"
"He didn't say anything," Hatch said, not at all unhappy about that fact. "The closest he came to discussing the law of privacy was on Griswold, but in a very limited sense. He limited it to basically the issue that was discussed in Griswold, which was contraceptives."
"So in other words, he didn't really say anything definitive about Roe?"
The striking thing about Hatch's words was that they came at the end of a day in which many people, from Roberts's supporters to some of his critics, believed he had said something significant about both Roe and Griswold, perhaps even suggesting that both cases were settled beyond challenge. That impression took hold with the very first questioning of the day, from committee chairman Arlen Specter. "In your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: Roe is the settled law of the land," Specter said to Roberts. "Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?"
"Well, beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis," Roberts answered, picking the last part of Specter's question. "And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the Court, yes."
With that, some of Roberts's supporters began to wince; one conservative observer said shortly afterward that he knew the nominee's words would cause unhappiness among the president's pro-life base, who would certainly want to know why Roberts had been quite so respectful of the status of Roe as "settled law." But the observer said Roberts was trying to "thread the needle" that is, to make carefully crafted statements on abortion that would satisfy Democrats (and the pro-choice Specter) without actually saying very much. Roberts was succeeding, but perhaps too well; to the casual listener, his words sounded quite pro-Roe. If conservative constituents had had one of those dial-o'-meter approval-rating devices in their hands, Roberts's graph would have headed straight down.
But Roberts's adversaries on the Left heard something else. "Yesterday he talked about baseball," said Ralph Neas of the liberal lobbying group People for the American Way, as he held court in the lobby outside the hearing room. "Today, he's playing dodgeball." And Nan Aron, president of the equally liberal Alliance for Justice, said Roberts had given "the illusion of candor and the appearance of openness. But in question after question, he dodged giving the answer and evaded responding to senators' real questions."
Rhetoric aside, Neas's and Aron's evaluations didn't differ all that much from Orrin Hatch's and that conservative observer's. But after Roberts's early statements, the hearings took a distracting turn when something that might be called the Biden Effect or perhaps the Kennedy Effect took hold.
Whatever its name, the Effect refers to what happens to conservatives' perceptions of a judicial nominee whenever he is questioned by the more assertive Democratic members of the Judiciary Committee. For Roberts, it began when Sen. Edward Kennedy told him, right off the bat, that "The stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America." From Katrina, Kennedy moved to Brown v. Board of Education ("the most important civil-rights decision in our lifetime," said the 72-year-old senator, before conceding that it had in fact been decided before Roberts was born) to the Civil Rights Act of 1964 to the Voting Rights Act of 1965.
Kennedy's destination was the extension of the Voting Rights Act in 1982, which happened when Roberts was a young aide in the Reagan Justice Department. Referring to memos Roberts wrote at the time, Kennedy said, "I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings." When Roberts attempted to explain himself, Kennedy seemed determined to keep talking. That led Specter to step in, and in the next few minutes the hearing transcript was filled with the following statements from the chairman:
"Let him finish his answer."
"Let him finish his answer, Senator Kennedy."
"Let him finish his answer, Senator Kennedy."
"Let him finish his answer. That was quite a long question."
"Wait a minute, wait a minute...Now, let him answer the question."
With each interruption, Roberts's conservative dial-o'-meter rating went straight up. And it shot off the scale when the next Democrat to question Roberts, Sen. Joseph Biden, made Kennedy seem positively patient and kind.
"I said yesterday this shouldn't be a game of Gotcha," Biden told Roberts at the beginning, shortly before engaging the nominee in a lengthy game of Gotcha. And the remarkable thing was, Biden actually got Roberts on one point, when he questioned Roberts about the so-called Ginsburg Rule, that is, the time-honored practice of nominees' not answering questions about issues that might come before the Court. Biden made it clear that Roberts was not strictly following the "no hints, no forecasts, no previews" precedent of Justice Ruth Bader Ginsburg that has often been cited by his supporters, but rather using it to answer some questions and not answer others. By the end of the exchange, Roberts was reduced to saying, "Senator, I think nominees have to draw the line where they're comfortable."
It might have been an effective moment for Democrats, had not Biden succumbed, as he almost always does, to the apparently irresistible temptation to grandstand. Playing to the crowd, Biden interrupted Roberts more than Kennedy had, leading Specter to again intervene:
"Let him finish his answer, Joe."
"Senator Biden, let him finish."
"Senator Biden, let him finish his answer."
"Wait a minute, Senator Biden. He's not finished his answer."
"Now, wait a minute. Let him finish his answer, Senator Biden."
At one point, Biden protested, "He's filibustering, Senator," Biden said, getting a good laugh. "No, he's not," Specter replied. "No, he's not." At another point, Biden exclaimed, "His answers are misleading!" before adding, "With all due respect."
"Now, wait a minute, wait a minute," Specter answered, clearly becoming impatient. "They may be misleading, but they are his answers."
"O.K., fine," Biden said.
"You may finish, Judge Roberts," Specter said.
"Fire away," said Biden. "Fire away."
"With respect, they are my answers," Roberts said. "And, with respect, they're not misleading. They are accurate."
The clownishness of it all served to direct attention away from the issue Roe, Griswold, and privacy with which Specter had begun the hearing. The subject was brought back by Sen. Dianne Feinstein, who earnestly questioned Roberts about Roe, which she has signaled will be the deciding issue for her vote on Roberts. "There are now entire generations of women who know a world only where their reproductive rights are protected," Feinstein said. "Do you agree with the Court that this reliance is sufficient [to establish Roe as an unassailable precedent]. Do you agree with this conclusion?"
"Well, that determination in Casey becomes one of the precedents of the Court, entitled to respect like any other precedent of the Court, under principles of stare decisis," Roberts said. "I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the Court. It is a precedent on precedent. In other words, it has examined Roe and "
"So you agree that the Court said that, obviously," Feinstein said.
"Well, it said that, and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the Court."
At that moment, Sen. Schumer, who was sitting to Feinstein's left, leaned toward his fellow Democratic Sen. Dick Durbin and smiled. To longtime Schumer watchers, the smile had an "I'm gonna get this guy" quality to it. That seemed especially true because, a few hours earlier, during the lunch break, Schumer had complained about the kind of that's-what-the-Court-said answers that Roberts was now giving to Feinstein.
"Almost on every major question, it's 'On the one hand, on the other hand,'" Schumer said of Roberts's responses. "'Well, there's precedent, and then there's overruling precedent' is what he basically said on Roe. I think we need more direct answers even if Justice Roberts Judge Roberts decides to do them in his own way."
If ever the scene was set for a showdown, this was it. But when Schumer's turn came, he didn't get this guy. He didn't even seem to try. In fact, Schumer seemed to have dramatically changed his tune about the acceptability of Roberts's statements.
"I have to say I've been pleasantly surprised by some of your answers today," Schumer told Roberts. And then, in 30 minutes of questioning, Schumer failed to ask the one question that he so often asked Bush nominees for the federal circuit courts of appeals during the old filibuster days. Back then, he would say, "It's 1965. You are sitting in the Supreme Court of the United States. Chief Justice Warren comes into your chambers with a copy of the opinion in Griswold v. Connecticut, the seminal case that held there is a right to privacy in the Constitution. He asks for your thoughts on the opinion. Now, there is no law to follow right now, but he is asking for your opinion in terms of everything that has been part of you. What do you tell him? Do you agree with the holding? Do you agree with the outcome, but get there in a different way? In other words, that there is a constitutional right to privacy, the penumbra of which extends to at least the first two trimesters of a woman's pregnancy what do you tell [Justice Warren]?"
Asking that would have forced Roberts to refine his answers on Roe and Griswold, to make clear what questions he was actually answering and what he was not. But Schumer didn't ask. Instead, he said, "And on the Griswold case and the right to privacy there, you said, in reference to Sen. Kohl's question, 'I agree with the Griswold Court's conclusion that marital privacy extends to contraception and the availability of that. The Court, since Griswold, has grounded the privacy right in that case in the liberty interests protected under the due process clause.' That is your accurate view?"
"Yes, sir," Roberts said.
Well, yes, that was what the Court did. And that was what Roberts said the Court did. But did Roberts agree with what the Court did? That would have been a natural Schumer question, but the senator didn't ask.
In the end, that is why Orrin Hatch and his Republican colleagues could walk away from the hearings so pleased with Roberts's performance. Yes, Roberts was extraordinarily polished and impressively knowledgeable. But on Tuesday, he had done something more than just be polished and knowledgeable. He had faced his toughest adversaries on the Judiciary Committee and left them seemingly unable to mount a coherent line of questioning. Now that, as Joseph Biden might say, is good.
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.