Before the opening of confirmation hearings for Supreme Court nominee John Roberts, officials prepped for a typical Beltway circus. Capitol Hill police roamed in a uniformed cluster, set to quell clashes between packs of protesters. Meanwhile, Senate staffers braced for the crowds they thought would jockey for seats inside the hearing room and set up a high-volume queue in a public park half a block away.
An hour into the hearings on day two, though, only about 40 people waited in line. And a lone picketer, David Dufresne of American Life League (ALL), dozed on and off, surrounded by pro-life placards propped against a tree trunk.
ALL had expected Planned Parenthood to march outside the Supreme Court that morning but no one showed, Mr. Dufresne said: "There's nothing for us to do."
The absence of stumping hinted that anti-Roberts posturing by Senate liberals and groups like Alliance for Justice was largely pro forma and almost certainly in vain.
Senate Judiciary Committee Democrats "tried to rough Judge Roberts up, but I detected a kind of resignation in their questioning," said Committee for Justice head Sean Rushton of the proceedings. "Still, their attitude was, 'We're not going down without a fight.'"
The hearings marked the first time in 11 years that the Senate Judiciary Committee had convened to pass judgment on a Supreme Court nominee. In the intervening years, appellate court confirmation hearings-particularly Democratic filibustering of early George W. Bush nominees-have completed the transformation of what used to be a formality into a partisan blood sport. But the president's choice of Mr. Roberts, a universally respected conservative lawyer with a strong Washington resumé, left liberal Democrats with few weapons. Then, the unexpected death of Chief Justice William Rehnquist on Sept. 3 sapped what anti-Roberts momentum liberals had mustered, as they factored in an upcoming second Bush nomination.
In the end, the hearings yielded little to show that Democrats will block Mr. Roberts. But they produced plenty of insight on the man himself. From the opening gavel, the judge established himself as both an intellectual force and a man at ease in his own skin. He delivered detailed and often engaging explanations of legal history and precedents dating from this year's Ten Commandments cases back to the time of Lincoln-all without notes.
When he wasn't maintaining a deferential game face, he was smiling, and seemed as comfortable unpacking legal complexities as clipping off wry comments, mostly at his own expense.
For example, Sen. Charles Grassley quoted 1930s Justice Benjamin Cardozo, who wrote that a judge "is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life . . ."
"What do you think Justice Cardozo meant by that passage?" Sen. Grassley asked Mr. Roberts. "And do you agree with it?"
"I know I agree with it," Mr. Roberts said, smiling. "Now let me figure out what he meant by it."
But a few senators felt the point of Mr. Roberts' wit. During his first 30-minute round, Sen. Joseph Biden (D-Del.) tossed out tripwire questions, then interrupted Mr. Roberts' answers. The judge was about to explain the Supreme Court's three-tiered system of "scrutiny" regarding gender discrimination issues, when Sen. Biden interrupted again: "I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second."
Mr. Biden then asked the judge to clarify the difference between "heightened scrutiny" and "strict scrutiny."
"Well, I was about to lay it out," Mr. Roberts said mildly. "You said you didn't want to hear about it."
That brought laughter from the gallery, and a clear signal that Mr. Roberts is not intimidated by contentious legislators. "I was in the hearing room and watched this man get berated and bullied," said Family Research Council's Connie Mackey. "He had the temperament they must mean when they speak of 'judicial temperament.'"
Originally nominated to replace Justice Sandra Day O'Connor, Mr. Roberts is now up for Chief Justice Rehnquist's seat. As chief justice, Mr. Roberts would set the agenda for weekly meetings in which the justices review petitions and decide whether to hear each case. That's why, despite Mr. Roberts' almost certain confirmation, activists on both sides of the cultural divide are sifting his testimony for clues as to whether he might encourage the court to revisit Roe v. Wade, the 1973 case that forced legal abortion on the states.
Again and again throughout the hearings, Democrats compelled Mr. Roberts to explain his views on stare decisis, the legal doctrine that says previous court decisions-or precedents-carry legal weight in themselves, without regard to statutory law.
Roe itself is precedent. And in 1992, the high court reaffirmed Roe in Planned Parenthood v. Casey. The court specifically addressed stare decisis, finding that since society has grown to depend on abortion, reversing Roe would disrupt "settled expectations" of its availability.
Sens. Specter, Biden, and Feinstein wanted to know: Would Mr. Roberts consider unsettling that expectation?
Mr. Roberts' answers gave some conservatives pause, as he repeatedly referred to Roe as "settled law" and Casey as "precedent on precedent." But he also noted three factors a court should consider when weighing whether to revisit a ruling, even one with a long history:
- Whether the bases for the precedents had eroded over time;
- Whether the precedents had become difficult to apply; and
- What would be the consequences of disrupting settled expectations.
In the case of Roe, U.S. Justice Foundation attorney Colette Wilson told WORLD, two of three could lead to another high-court review. First, national polling shows that only about half of Americans consider abortion a "settled" issue. Second, precedent-eroding evidence on abortion has emerged since both rulings. "So much more is now known about the dangers to women of abortion," said Ms. Wilson. "There is now abundant evidence to show that it would be a legitimate state interest to limit abortion because of its harmful effects on women."
Mr. Roberts did not hint he would revisit Roe, but his answers on stare decisis left open the possibility. Meanwhile, he testified that he does believe in a constitutional "right to privacy." Many conservative legal scholars view the "implied" right to privacy on which the Roe court hung its decision as a pernicious legal construct.
But Mr. Rushton said Mr. Roberts' "general acceptance of a constitutional right to privacy does not automatically yield assent to Roe." A judge may agree, for example, that Americans have a right to privacy in their own homes, but not agree that they have a right to kill someone or use illegal drugs in their homes. Privacy alone, Mr. Rushton said, does not lead to Roe: "The only way you can accept Roe is by concluding that the unborn child is morally meaningless."
Sens. Specter and Feinstein seemed concerned that Mr. Roberts himself might have moral qualms over abortion, rooted in his religion. Both lawmakers wanted the nominee to publicly dissociate his Catholic beliefs from his legal work; Ms. Feinstein asked Mr. Roberts whether he agreed that there is an "absolute separation of church and state."
"My faith and my religious beliefs do not play a role in judging," Mr. Roberts said. "When it comes to judging, I look to the law books. . . . I don't look to the Bible or any other religious source."
Ms. Wilson, a Christian conservative, felt it was appropriate for Mr. Roberts to draw that distinction-but that it was inappropriate for the committee to apply what was essentially a "faith test" to his nomination: "Those kinds of questions hint that if you're a religious person, the committee may determine you're not qualified to be a justice."
Mr. Rushton noted that Mr. Roberts could have saved himself a lot of trouble by implying or stating outright that he wasn't interested in reconsidering Roe. "But he went to great lengths to avoid doing that, and also to underscore that there are occasions where striking down precedent is appropriate."
If Mr. Rushton's read is correct, pro-lifers may have cause for optimism about a Roberts-led high court. Ms. Mackey, meanwhile, said Beltway conservatives are optimistic about how Mr. Roberts would run the court if confirmed. But, she noted, "the history of Republican nominees has not been good. . . . When all is said and done, there are still no guarantees."
-with reporting by Priya Abraham in Washington, D.C.