Roberts at the Bat
The message from Roberts is that he is so smart that he can make and win a legal case irrespective of his personal opinions or values. That nothing in his public record that has been released says anything about the man Roberts; it’s all Roberts the hired advocate for someone else. He declines to state what his personal opinions are or even if he has any at all beyond the most broad and bland positions that are beneath that of an intelligent sixteen year old.
What I’ve taken away from the hearings so far is that instead of a man with a deep and profound respect for the Constitution, the US legal system and equality, Roberts is a man who sees it as a game. A game that he competes in for the sole purpose of winning. Winning for his client. Winning for himself.
He represents the most cynical and self-serving of how attorneys are viewed by average Americans. Winning for the sake of winning and collecting lots of money for doing so from those who can afford to hire him. Nobody on the Senate panel is going to get any picture of who Roberts, the man, is because the hearing is another game to him. One that he knows he wins as long as he is never real.
The only honest thing Roberts has said in two days is choice of a baseball metaphor to introduce his judicial philosophy. Forget the part where he likened his role as a judge to that of an umpire --that is so weak that even Biden could shoot it down. It’s a game. A game that Roberts will continue to seek to win in the future. A game that he is absolutely confident that he can win better than Rhenquist could or Scalia could hope to win.
However, where is the evidence that Roberts could win an argument regardless of which side he was on? If he is so intellectually dexterous, why is there almost nothing to look at from him taking a position to the left of Scalia? Why can he not even articulate which positions he took in those tens of thousands of papers that he disagrees with today (other than he no longer finds it convenient to champion term limits for judges)?
People like to point to Republican Supreme Court nominees that turned out to be more liberal than expected to suggest that Roberts may also turn out to be more liberal. Not likely. Members of the Warren Court were appointed in an era when political and legal philosophies in the country were maturing in an expansive period. Moving beyond a nineteenth century worldview. Fully integrating the thirteenth and fourteenth amendments, the Great Depression and the miracle of the New Deal. There was nothing all that surprising about the mixed record of those Nixon appointed. At that time, there was a Democratic Congress and Nixon was forced to draw from the same pool of “qualified candidates” that Eisenhower had to draw from except for Rhenquist. The only kindred spirit, also the youngest, that Nixon was able to find that he could get through the confirmations hearings. Sandra Day O’Connor was similarly not surprising as a justice. As I previously discussed, she is a conservative Republican woman of her generation. Not particularly rare over twenty years ago but a fast dying breed today as the Schafly wannabes in the GOP have gained power. The GOP didn’t vet Souter; so, it’s not surprising that they placed someone similar to Clinton’s appointees on the court. Scalia and Thomas have been so completely predictable that a computer could be programmed to spit out their decisions.
Roberts unlike Souter has been vetted by the GOP. There’s not even any mystery concerning who he is. I don’t think he’s so brilliant that most of what he’s written that’s in the public record doesn’t reflect his own views. A passing glance at it suggests that this man is in lockstep with the former Rhenquist-Scalia-Thomas faction. To narrow it down, he is more radical than Rhenquist. He doesn’t carry Rhenquist’s racist baggage, but matured in an era that promotes a less obvious and more insidious form of class inequality and divisions. It was interesting and not surprising that Roberts declined to respond to Lindsay Graham’s question that asked Roberts if Scalia was more conservative than he is. The language of conservative-liberal in comparing Roberts to Scalia and Thomas is inadequate. While he will vote with those two, I doubt that he will agree with Scalia’s reasoning on major decisions. Unlike Rhenquist that I always had some respect for from the time of his nomination to an associate justice position, I can’t get there with Roberts. Like Wolfowitz and Bolton, there is a rigid worldview through which his intelligence operates. It’s intelligence that seeks to support an ideology not based on the loftiest human principles and values as enumerated in the Declaration of Independence and Constitution.
His answer to one question on the Constitutional right to privacy seemed to be most telling to me. It was carefully phrased to sound as if he does accept that a right to privacy is in the Constitution, and that is what observers seemed to take away from it. But that is not what he said. He said that like all members of the Supreme Court, he agrees that there are some privacy rights. Would that be like the right to privacy that Thomas accepts in the Constitution? IOW, none. I hope I’m wrong (and all the way back to Carswell and Haynesworth, only Souter stumped me), but my take is that Roberts will be a smarter and whiter version of Thomas (without a penchant for porn videos, at least not the “Debbie does the Dolphins” variety).
(Update: Biden picked up on Roberts' evasion on the right to privacy question -- and is now attempting to grill him by pointing out where Scalia stands on this issue.)