The Roberts double-standard

By on September 28, 2005

Throughout history, presidents have rarely encountered major opposition in confirming their judicial nominations to federal courts. The Senate has generally respected that the American people elected the president, and it is the president who is charged with nominating suitable, qualified jurists to federal courts, including the Supreme Court.

In 1993, former President Clinton nominated Ruth Bader Ginsburg to fill the Supreme Court being vacated by the retiring Justice Byron White. Ginsburg had previously been a judge on the U.S. Court of Appeals for the Washington, D.C. circuit. At her Senate confirmation hearings, Ginsburg steadfastly refused to answer any questions relating to her views on subjects that might come before the Court. When asked a question about sexual orientation, she responded, “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”

Ginsburg applied this “no previews” standard throughout the hearings. However, at the time it was clear that Ginsburg held strong liberal views on a variety of issues. For instance, she opined that laws against prostitution raised strong Constitutional issues. She also said that laws against bigamy are “of questionable constitutionality since (they) appear to encroach impermissibly upon private relationships.” Ginsburg advocated reducing the age of consent from 16 to 12, and requiring taxpayer funding of some abortions. Perhaps most ridiculous of all, Ginsburg had advanced the idea of abolishing Mother’s Day and Father’s Day and replacing them with a generic “Parent’s Day.”

Needless to say, Ginsburg held some views that were not exactly in the mainstream of American thinking. Nevertheless, Senate Republicans at the time gave deference to Ginsburg as the appointee of the president and didn’t put up a big fuss about these views. Neither did they kick and scream about the Ginsburg standard of not answering questions about how she would rule on certain issues. In the end, Ginsburg sailed through her confirmation vote by a remarkable margin of 96-3. That is unheard of today.

Now fast-forward 12 years ahead to the confirmation hearings of Judge John Roberts, President Bush’s nominee to become Chief Justice of the Supreme Court. Like Ginsburg, Roberts largely refused to commit one way or the other on key issues that could come before the Court during his tenure. Roberts told the Senate Judiciary Committee that he has “no agenda” on the bench and would approach his job with humility.

That wasn’t good enough for some Senate Democrats. Patrick Leahy of Vermont said, “This hearing is the only chance that ‘We the People’ have to hear from and reflect on the suitability of the nominee to be a final arbiter of the meaning of the Constitution.” Diane Feinstein of California pointedly asked Roberts about his views on the invented-by-liberals Constitutional right to privacy. This is important, because once the right to privacy was invented out of nowhere, the right to abortion quickly followed.

Chuck Schumer pressed Roberts to explain his judicial philosophy, asking Roberts if he’s an “ideologue who will seek to use the court to impose your views on us.” What did Schumer expect – Roberts to say yes and leave the room?

Republicans were the minority party in the Senate in 1993, and Democrats are now in the minority. Why is a different standard being applied to Roberts than that which was applied to Ginsburg twelve years ago? Roberts is a judge who has expressed far less polarizing views prior to his nomination, yet he now is being asked the same questions that Ginsburg refused to answer in 1993. No one raised an eyebrow then. Now, Democrats say they’re being left out of the process if Roberts doesn’t tell them how he’ll vote on the Court.

Senate minority leader Harry Reid has already announced that he will vote against Roberts, which will likely be a signal for the herd of Democrats to follow. While Roberts will ultimately be confirmed, it certainly won’t be by a 96-3 vote. I doubt the Republicans in 1993 agreed with Ginsburg’s views, but they voted for her anyway. Democrats have decided to vote against Roberts not because he’s unqualified, but because of ideological differences.

Much to the chagrin of people like Feinstein, Roberts is not going to come out and announce his official position on abortion. My opinion? Chief Justice Roberts won’t overturn Roe v. Wade. But if he were to give the Senate a laundry list of positions that he’ll take in the future, he would not be able to adequately do his job on the specific cases he will face. Both Ginsburg and Roberts were right in refusing to answer such questions. Democrats should follow the example set in 1993 and vote to confirm Roberts. But I’m not counting on it.


About A. J. Atchue