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Confirmation Report

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from: Dahlia Lithwick

Getting to "Law-Plus."

Posted Thursday, Sept. 15, 2005, at 7:07 PM ET

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Yes, Mr. Roberts, but where would you plug in a breast pump in this building? Click image to expand.

Abandoning their efforts to win votes back home or to score cheap points off a constitutional superstar, Senate Democrats this morning come clean with their real fears about John Roberts: Confesses a frustrated Dianne Feinstein, D-Calif., "I don't really know what I'm going to do with respect to voting for you or voting against you. ... The impression that I have today is of this very cautious, very precise man." Chuck Schumer, D-N.Y., frets: "I, for one, have woken up in the middle of the night thinking about it, being unsure how to vote."

Schumer gives a remarkably candid rundown of the pros and cons of John Roberts. (Pros: brilliant, non-ideological, humble; cons: won't admit he was fascist under Reagan, won't disclose documents revealing he was fascist under Reagan, won't answer questions about the law.) Schumer needs to know if this impassive man is a movement conservative, a country club conservative, or the blank slate he appears: "Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter, and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the court to turn back a near-century of progress and create the majority that Justices Scalia and Thomas could not achieve?"

Roberts' response: "Look at my opinions. I don't think you can read those opinions and say that these are the opinions of an ideologue. ... And you and I agree that that's not the sort of person we want on the Supreme Court."

So, is Roberts an ideologue? Roberts says no, and most of us are inclined to believe him. If he really is Scalia-without-the-anger, he's the most accomplished liar in world history.

But still the Dems press him. It's not good enough to be fair and humble and non-ideological. They want to know if he "gets it"—if he understands what the stakes are for women and minorities and the disabled. But there is no term of art in the law for "getting it." So, Dick Durbin, D-Ill., tries a different tack: Quoting the late Sen. Paul Simon, he asks, "Would you restrict freedom in America or would you expand it?" Roberts' response is eloquent: "I had someone ask me in this process—I don't remember who it was, but somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."

All afternoon, witnesses have been testifying back and forth about John Roberts. His supporters call him brilliant and kind and diligent and principled. His detractors mostly say he doesn't get it. Some, like Democratic Georgia Rep. John Lewis, suggest he really is an ideologue: "He was in the boiler room of the Reagan administration," stoking principles and theories to attack established civil rights law. But most of his critics don't even do that. They just talk about history a lot.

One witness says, "we cannot escape history," and another says that under a Justice Roberts, the "civil rights revolution wouldn't have happened." Back and forth the witnesses go—Roberts is great/Roberts doesn't get it—never really acknowledging that they are not disagreeing; that it's possible to be kind and smart and to believe in the rule of law and also not to get it.

Because the "it" in question has nothing to do with the rule of law. It's about something I might call "law-plus"—the idea that the rule of law, in and of itself, has not always made this country fair. Law-plus rejects Roberts' notion that law, applied neutrally, invariably leads to just results. Law-plus acknowledges that the federal courts have leveled the playing field in this country by broadly interpreting civil rights statutes to allow individual causes of action. Law-plus means federal courts have read the civil rights amendments broadly, in order to level the playing field. Law-plus means accepting a counter-majoritarian role for the courts when the other branches of government cannot or will not protect the weak.

John Roberts isn't a fan of law-plus. In fact, the unbounded nature of judicial power under law-plus is probably what drove him into the boiler room of the Reagan administration in the first place. Time and again he scolds the senators: If you want your statute to provide money damages, write it that way; if you want your legislation to implicate interstate commerce, write it that way. For Roberts, it is not the courts' responsibility to make statutes effective. It is not even the courts' responsibility to make the world fair.

Throughout these hearings, John Roberts has presented himself as utterly neutral, without once acknowledging that judicial neutrality is a moral choice with moral consequences. I, for one, am willing to take him at his word that his personal views don't matter—that he will approach cases with an open mind and no agenda. But the question for the Democrats struggling to decide how to vote is whether open-mindedness and neutrality are enough.

I came into these hearings thinking there was no constitutional question more urgent than where in the godforsaken Escher painting that is the Hart Senate Building one might plug in one's breast pump. But I've come away with a much harder question—one I'm not certain I can answer anymore. The problem isn't whether John Roberts can be principled and fair on a thoroughly passive court. I'm sold on that. It's whether a thoroughly passive court can ever truly be principled and fair.

*****************************************************

Thanks for the votes in the reader contest. Winners to be announced when I've finished tabulating the results. To the guy who guessed Roberts would decline to answer three questions: It's not you.

jurisprudence
entries
1234
from: Dahlia Lithwick

Getting to "Law-Plus."

Posted Thursday, Sept. 15, 2005, at 7:07 PM ET
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Dahlia Lithwick is a Slate senior editor.
Photograph of John Roberts' confirmation hearing by Win McNamee/Getty Images; of John Roberts in Tuesday's Dispatch and on the Slate home page by Pablo Martinez Monsivais/AP Photo; of Joe Biden by Micah Walter/Agence France-Presse/Getty Images. Photograph of Sen. Ted Kennedyby Micah Walter/Agence France-Presse/Getty Images.
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