Fit to be Chief

It had promised to be interesting at the very least. With the liberal elite split in two, a proscenium stage set for soundbite questioning from serious senators, the confirmation hearings for John G. Roberts ’76 as Chief Justice to the Supreme Court promised to be an entertaining piece of political theater. Unfortunately, the lead is not performing. Not only are many questions going unanswered, but Roberts’ appropriate silence on his decisions for future cases is making the side characters—the senators—look bad.

In short, this play needs to leave the main stage.

Roberts is a qualified, talented, and mainstream candidate. While we often hold what most wouldn’t consider conservative views, this is not the time to be overly ideological. President Bush’s nominee ought to be confirmed by a large bipartisan vote despite his silence, and perhaps even because of it.

The 50 year-old appeals court judge has defended his reserve by repeating something like the following—“while I can’t comment on that case because the issue it raises might come before me as a judge, I can assure you I have no agenda and will be fair and open-minded.” And we don’t find such a line to be unreasonable.

Though justices are not blank slates and certainly have biases, what Roberts has given us is a commitment to think. His refusal to answer questions on future cases is his admirable refusal to pre-judge a case before hearing out its merits. This is an unexpected revelation from a man who worked in the Reagan administration, appointed by an intensely ideological president.

It is exactly this ambiguity, however, that has split many adamant conservatives and liberals. The editorial pages of the New York Times and the Washington Post, both bastions of the liberal elite, were noticeably divergent, with the former advocating senators to vote against Roberts and the latter calling for a large bipartisan confirmation. Likewise, some conservatives are reluctant to endorse a nominee that has said his decisions will largely follow judicial precedent, leaving conservative sores like Roe vs. Wade intact.

But it is exactly this lack of strong ideological bias that leads us to support Judge Roberts. His nomination is the best candidate liberals can reasonably hope for.

Another plus is his experience in the private sector, which will inject some involvement in a court woefully under-qualified in matters of commercial law. Justice Breyer is the only justice on the Court with experience in business litigation, and the Court’s reluctance to reform the neglected inconsistencies in the field has left a messy legal terrain.

We’ve tried to dig the dirt, but our nails are still clean. If Judge Roberts abides by what he proclaims to be his beliefs, partisanship ought to remain on the sidelines, and a large bipartisan vote in his favor should commence.

More troubling is the spectacle of legislators—most non-lawyers—using legalese in monologues unconvincingly replete with phrases like “jurisdiction stripping,” “qui tam” statues, and the massive euphemism for the abortion debate, “stare decisis”—the Latin term for letting existing precedents stand. We realize the good intentions of legislators, but please spare us. For a lawyer who routinely argues before the Supreme Court, questions of amateurs are easily deflectable. Such an imperfect method shall yield nothing the nominee chooses not to reveal. An educated proposal to fix the confirmation system is beyond the scope of this editorial however.

Meanwhile, we ought to take our cue on how to respond to John Roberts by what retired Justice Sandra O’Connor said about him.

When asked about Roberts’ nomination, she said, “that’s fabulous.”

We‘d like to concur.