Roberts Reviewed

The Snooze Hearings?
An email conversation about the news of the day.
July 22 2005 10:36 AM

Roberts Reviewed

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Viet and Dahlia:

Viet, you mention a decision by the Clinton administration's solicitor general to confess error in a child pornography case, but you're too generous about the congressional reaction. You describe a "near-unanimous" condemnation by Congress. Actually, as I recall all too well, the vote was 100–0 in the Senate to condemn the position taken by the Clinton administration's solicitor general. So, at least with regard to the Senate, you can drop the "near." But I have to say that in my view, the case, which most people happily have forgotten, is of dubious relevance to the footnote in the abortion brief that Roberts signed. For what it's worth, the Clinton Justice Department later "refined" its position in the child pornography case further and preserved the prosecution of the child pornographer. If anything, that history undermines the point you were making about consistency in an administration. It shows that within the same administration—and even with regard to the same case—a single administration can revise its own position. In any case, I don't think that idiosyncratic case is a model for anything or has broader significance.

Dahlia, you ask how to tell what's going on in a nominee's head. The Kabuki dance of the hearings now is well under way. Everybody agrees that a nominee should not have to answer how he would rule in a particular case, and everybody agrees that a nominee can fairly be asked about his general views of the law. The trick is what falls on which side of the line. With so little to go after in Roberts' background, critics want the hearing itself to generate a record they can attack. The White House and Republicans, in turn, are just as determined to play rope-a-dope and avoid giving opponents any openings.

The issues for the hearings right now look pretty thin to me. On the abortion statement in the solicitor general's brief, it's not clear to me why we can't accept Roberts' argument that he was a lawyer representing a client and then simply ask him if he agreed with the view he expressed in the brief that bore his name and other names. It may be unfair automatically to impute the view in the brief to him, but is it then off limits simply to ask him if he agreed with the position the brief took and to expect an answer? That's not asking him how he would rule in a particular case (although he probably will claim that it is); it's asking him a question of historical fact.

Another issue that has come up, in Slate and elsewhere, is Roberts' recent acquiescence in a decision that gives the administration sweeping power to try Guantanamo detainees (and possibly others) in special tribunals with very limited procedural protections. The issue merits discussion, but the Bush-Rove reaction will be, "Make my day." Criticizing Roberts for giving the administration too much power to go after suspected terrorists will thrill them. The reports today are that the Democrats will focus in the hearings on the scope of Congress' power under the Commerce Clause. This is an important issue with enormous social consequences, one that likely will be a fierce battleground in coming years, and one on which Clarence Thomas, for example, has a singularly radical record. But my guess is that this line of questioning probably also won't go anywhere interesting. Roberts will be able to tap dance around it fairly easily, and, at this point, it's probably a difficult issue to paint with the kind of broad political strokes that would get the public excited.

The big thing that the Bork confirmation experience changed was not the rancor in the process, but the role of the hearings as national theater. Viet and Dahlia—what do you think? Will the hearings this time turn out to be a snooze? Will the play close early? Will the highlights of the hearing be the camera shots of Roberts' children?

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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