Wednesday, September 07, 2005

John Roberts' Supreme Court Hearing

Just because John Roberts is now likely to be the chief justice of the Supreme Court for the next 30-40 years doesn't change the political calculus of his confirmation process (see my previous post below). There is still no plausible way that the Democrats could derail his appointment.

Nor should they waste their time and energy grilling him at his confirmation. TNR online author William Stuntz suggests that not only should the Dems save their energy for a real wingnut nominee, but that grilling Roberts too hard could slow the leftward progress that many conservative judges make once appointed to the court (may be subscription only). The key grafs:

Republicans sometimes complain that these hearings are too ideological, that the only legitimate issue is the candidate's temperament. They have it backwards. Live hearings are always about temperament--which is precisely the problem. They ought to be about judicial philosophy, about the candidate's substantive record. That will never happen as long as candidates sit for days and answer senators' questions. The ins and outs of separation-of-powers law doesn't make for good television. Video rentals do.

That is one reason liberals should want to avoid grilling Roberts. Here's another: The best Supreme Court justices learn and grow on the job. Like many white Southerners of his generation, Lewis Powell (for whom I clerked) was a lifelong segregationist. Once on the Court he saved affirmative action, at a time when the nation needed it. Live questioning in televised confirmation hearings makes Powell-like growth less likely. Nominees take public positions and feel constrained to follow them. Worse, some nominees react to hostile questioning by thumbing their noses at their tormentors. Would Clarence Thomas's voting record be so conservative if his hearings had been more civilized? No one knows, but the question should give liberals pause.

It should, if only because liberals have nothing to gain from grilling Roberts. Again, embracing Roberts (or pretending to do so) for his pro-gay, pro stare decisis record would inflict much greater political harm on a weak and tottering President Bush than pretending to grill Roberts.


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