Marchand Chronicles: Judge Roberts' HearingsSchumer's Inquisition
The Marchand Chronicles
August 1, 2005
[I]t is vital that Judge Roberts answer a wide range of questions openly, honestly and fully in the coming months. His views will affect a generation of Americans, and it his obligation during the nomination process to let the American people know those views . . . I voted against Judge Roberts for the D.C. Court of Appeals because he didn't answer questions fully and openly when he appeared before the committee . . . But now it's a whole new ball game for those of us who voted against him, for those of us who voted for him and for Judge Roberts. I hope Judge Roberts, understanding how important this nomination is — particularly when replacing a swing vote on the court — will decide to answer questions about his views. Now that he is nominated for a position where he can overturn precedent and make law, it is even more important that he fully answers a broad range of questions.
. . .
And so, therefore, not only should he be fully answering questions about his own views, but we will — we hope we don't have to go through what happened with Miguel Estrada, when we asked for some of the papers and arguments when they worked in the Justice Department, that we didn't get them. It's going to be very important, particularly for a Supreme Court nominee replacing a swing vote on a divided court, that we get all the information and people don't throw up barriers to that information . . . [T]hat's what caused the entire Senate not to — or many in the Senate not to support Miguel Estrada. That's what caused me not to vote for him then, not to vote for Judge Roberts then. But as I said, it's a new ball game. And as long as he answers the questions fully and openly and gives us the documents that we request, we can be able to explore his views.
—Senator Charles Schumer (D-NY), July 19, 2005, at a press conference following the nomination of Judge John Roberts to the Supreme Court (h/t: AYCU)
It was only moments after President Bush announced John G. Roberts as his nominee to the Supreme Court that Chuck Schumer tipped his hand on how the Democrats would oppose him. This tactic is not new: merely hours after Robert Bork was nominated in 1987, Senator Ted Kennedy (D-MA) delivered a vitriolic screed on the Senate floor that, although it was completely over-the-cliff rhetorically, devastated Bork's chances of confirmation.
Within minutes of Roberts' nomination, the Democrats had these templates for judicial opposition stamped and ready to roll off the assembly line. Their obstruction comes in two flavors: Bork and Estrada.
The trouble is, neither one of them will work, since neither of them will rise to the level of "extraordinary circumstances" that would justify a filibuster following the "Gang Of 14" compromise in May.
Conservatives are already promoting what they call the "Ginsburg Rule" for John Roberts when he attends his hearing. When Ruth Bader Ginsburg was examined in 1993, her steadfast answer when questioned on how she'd decide hypothetical cases was "no hints, no forecasts, no previews." Ginsburg didn't invent this defense; four of the last five justices confirmed to the Supreme Court (Kennedy, Souter, Ginsburg, Breyer) explicitly stated during hearings that they could not and would not answer questions that would compromise their judicial integrity. They were all confirmed with less than ten dissenting votes in the entire Senate.
This is more than an evasive maneuver; it's of the utmost importance that judges hear all cases before them with an open mind (in fact, Senator Patrick Leahy [D-VT] praised outgoing Justice Sandra Day O'Connor for that characteristic just before Schumer announced his litmus tests). However, the Democrats want to have it both ways: an impartial jurist who sacrifices his ability to examine cases without prejudgment while under the klieg lights. This is an impossibility, but the Democrats think they've found a win-win scenario: if Roberts answers the questions, he'll be lumped in with Robert Bork; if not, he'll be accused of being secretive about his true views and therefore an extremist . . . like Robert Bork.
As for the "documents" Senator Schumer wishes to see about John Roberts, those date back to his time in the Solicitor General's office. Ordinarily, these sensitive memos would be protected by attorney-client privilege. It's unclear just how they'd matter, as Solicitors General work at the behest of the Administrations they serve and not by their own views; furthermore, Roberts was merely a deputy in the SG's office.
But that scarcely matters to Democrats: the reluctance to release confidential documents served as the basis for the filibusters of the nominations of Miguel Estrada and, later, John Bolton to the ambassadorship at the UN. Last week, when the Bush Administration unloaded 75,000 pages of documents from Roberts' time at the White House Counsel's Office, it still wasn't enough. "What are they trying to hide?" asked lefty group People For The American Way in a press release. The answer: it doesn't matter. Every living Solicitor General, employees of Republicans and Democrats alike, urged that these privileged documents stay sealed during Estrada's hearing in 2002. To this day, they have not changed their position.
Because of the "Gang Of 14" compromise, Democrats have a rhetorically vague but conceptually definable line of "extraordinary circumstances" that they must prove to justify a filibuster. But they can't establish "extraordinary circumstances" with the only two tricks in their book. In fact, forcing nominees to make pledges on their views or release confidential documents are the only extraordinary actions taking place.
In the end, John Roberts will be neither Borked nor Estradified. There's only one other model they've tried, and it’s for emergency use only. While some drunk-on-Kool-Aid lefties have already tested it, let's just hope Roberts won't be Thomassed, either.