The challenge facing Roberts
Senate hearings can make or break Supreme Court nominees.
John Roberts's appearance Monday at the historic Senate Caucus Room - marking the start of his confirmation hearings to be the 17th chief justice of the United States - begins the official conversation about his fitness for this lifetime appointment.
He will face 18 senators (10 Republicans and eight Democrats). But the hearings are also a conversation with the American people about two branches of government - Congress and the high court - that seem increasingly at odds with each other.
Though the center seat on the bench is a higher profile position than the one President Bush asked Judge Roberts to fill when he was first nominated 55 days ago, the political stakes are lower. If confirmed as chief justice, Roberts will replace another conservative (William Rehnquist), not the crucial swing seat to be vacated by retiring associate justice Sandra Day O'Connor.
Roberts is the picture-perfect nominee: brilliant, accomplished, every hair in place, and prepared. But what determines his future is how he performs in this week's hearings before the Senate Judiciary Committee.
Reagan nominee Robert Bork, the leading conservative constitutional jurist of his day, seemed invincible going into his 1987 hearings, but his responses - and a fierce campaign against him by outside groups - lost him key moderate votes, and the nomination failed. Subsequent nominees learned from the Bork fiasco.
"It's Roberts's nomination to lose. He needs to please the Republican conservative base and more-centrist Democrats," says Sheldon Goldman, an expert on judicial confirmations at the University of Massachusetts at Amherst. "If he comes across as an ideologue - as anti-civil rights, anti-women's rights - he will lose. If he stonewalls, he's finished. But it's inconceivable ... that he will open himself up like that."
Though he has just two years' experience on the federal bench, Roberts is well known in Washington and no stranger to high court confirmation fights. In 1981, as a new aide in the Reagan Justice Department, he coached Justice O'Connor for her confirmation hearings. His advice: "Avoid giving specific responses to any direct questions on legal issues likely to come before the court," but demonstrate "a firm command of the subject area and awareness of the relevant precedents and argument." O'Connor was unanimously confirmed.
Senators in both parties say they want to avoid a process driven by "gotcha" politics. Roberts's sharpest critic on the Judiciary panel, Sen. Charles Schumer (D) of New York, says he submitted his questions to Roberts in advance. "It's not about gotcha," he says.
For most of US history, nominees seldom appeared before the Senate Judiciary panel. In 1939, William Douglas got so tired of waiting that he finally sent a note asking if there were questions. There weren't, so he went home. In his opening remarks to Clinton nominee Ruth Bader Ginsburg, Sen. Joseph Biden (D) of Delaware, then committee chairman, reminded her that: "There is nothing in the Constitution requiring you to reply."
In recent weeks, both sides have pored over past Supreme Court hearings to find just such precedents. Democrats say the Supreme Court now plays such a decisive role in politics that Americans have a right to be fully informed on a nominee's judicial philosophy. Just because a previous nominee refused to answer a question does not mean Roberts can, "because the stakes are so much higher," says a Democratic Judiciary aide who is not allowed to speak for attribution. Democrats will ask what he meant when, as a lawyer in the Reagan administration, he referred to the "so-called right to privacy," and about his views on the Bush administration's treatment of detainees at Guantánamo.
The Republican Policy Committee, led by Sen. Jon Kyl, a member of the Judiciary panel, notes that all current sitting justices declined to answer questions that would have required them to prejudge issues and cases.
But Democrats and GOP chairman Arlen Specter say there's enough scope to probe a nominee's judicial philosophy, without forcing him to signal how he might rule on a particular case.
"This is the only moment when the political process can appropriately influence the direction of our jurisprudence," says Mark Gitenstein, a former chief counsel for Democrats on Judiciary. "To say that the American people are not entitled to know where this nominee stands on issues is to undercut this premise."