i•de•o•logue: "A particularly zealous or doctrinaire supporter of an ideology."
Chief Justice nominee John Roberts survived his third day of questioning and speeches before the Senate Judiciary Committee sporting the same smile he wore at the beginning of Day 1, assuring Sen. Charles Schumer that he isn't an ideologue.
"If you've looked at what I've done since I took the judicial oath," Roberts said, "that should convince you that I'm not an ideologue."
Leaving aside the fact that Roberts, as an appellate judge of the District of Columbia Circuit, has had no highly-charged cases about which to demonstrate a zealous or doctrinaire position on society's most controversial issues, one crucial question remains that no one on the Judiciary Committee has broached, nor is anyone likely to ask before the final vote is taken on Roberts' confirmation in late September: Why should anyone believe one word this man says about what he will or won't do as Chief Justice of the United States?
Consider that the New York Times reported on Sept. 1 that Roberts had spent most of August closeted with at least 12 administration officials and attorneys who formed part of an 18-person team that grilled and critiqued Roberts on questions that he was likely to encounter from the Senate Judiciary Committee. The questioning included about 10 two- to three-hour "hearings" run by Rachel Brand, director of the Office of Legal Policy at the Justice Department, where "administration lawyers and a revolving cast of Judge Roberts's colleagues and friends baited him with queries, including those they anticipated from the three Democratic senators who are widely expected to be toughest on the nominee, Patrick J. Leahy of Vermont, Charles E. Schumer of New York and Mr. Kennedy," according to the Times.
To say the least, this level of involvement by a federal agency – the Justice Department – in prepping a candidate for the nation's highest judicial seat for his questioning by another branch of the government is unprecedented. Worse, among the prep team were some of the most virulent religio-reactionaries currently and formerly in the administration, including C. Boyden Gray III, described by the Times as "a former White House counsel," but whose primary role these days is as founder of the Committee for Justice, a far-right group seeking to do away with what they describe as "activist judges"; i.e., anyone who doesn't hew to the "traditionalist" or "strict constructionist" view of the Constitution as espoused by Associate Justice Antonin Scalia.
Other participants in the "hearings" included former Republican Party chairman Ed Gillespie, White House counsel Harriet Miers, and Steve Schmidt, a senior adviser to Vice President Dick Cheney.
What's clear is that Roberts has gotten a month of the very best coaching imaginable on how to respond to senators' questions in ways that seem out-going, honest and revealing, but which in fact provide little if any information as to how the nominee feels about some crucial social issues, including abortion, First Amendment concerns, the limits of presidential power and assisted suicide.
For instance, in questioning from Sen. Mike DeWine about that "very troubling material" pornography, where DeWine asked, "Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain's Huck Finn?", Roberts responded, "Well, Senator, it's my understanding, under the Supreme Court's doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not."
Actually, the answer to DeWine's question is a simple one, found in the First Amendment: "Congress shall make no law ... abridging freedom of speech, or of the press" – and as the late Justice William O. Douglas reportedly said, "When I see 'Congress shall make no law,' to me, that means 'no law.'"
That, however, is not Roberts' view. In answering DeWine, Roberts claimed that in analyzing to what "level of protection" a particular bit of speech was entitled, it is first necessary "to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment." Not exactly a "strict constructionist" view of the First Amendment!
Elsewhere in his testimony, Roberts said, "[I]t is important that people keep a basic principle in mind when they're addressing these types of concerns. And it's not a provision in the Constitution. It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country. And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right." However, that statement hardly squares with his concept that some speech is entitled to lesser protection than other speech.
But while Roberts may have been able to evade being pinned down on just what types of speech are worthy of constitutional protection, the question every citizen who's paying attention to these hearings should be asking is, is there anything compelling Roberts to be candid or truthful with his questioners? The answer to that is likely "No."
For instance, several senators, including committee chairman Arlen Specter, asked Roberts about his views on whether privacy is a constitutional right, though the word "privacy" appears nowhere in that document. When Specter directly asked Roberts if he believes the Constitution contains a right to privacy, Roberts answered, "I do." He later referred to privacy protections under the First, Third, Fourth and 14th Amendments, as well as through 80 years of Supreme Court decisions.
The "privacy" question is crucial, since in deciding the landmark abortion rights case Roe v. Wade, Justice Harry Blackmun referred to a woman's right of privacy as superceding any state interest in preserving the pregnancy – and abortion rights are something President Bush's supporters are keen to get rid of.
So when Specter asked Roberts whether he considers Roe a "super-duper precedent" and settled law, Roberts replied that any judge would first turn to Roe's reaffirmation in the 1992 case of Casey v. Planned Parenthood. "It's a settled precedent of the court, entitled to respect under principles of stare decisis," Roberts said, referring to the legal term meaning to stand by that which is decided. He also responded to a question from Sen. Schumer by saying, "I think there is a right to privacy protected as part of the liberty guarantee in the due process clause." When Schumer pressed, "A substantive right to privacy?" Roberts said, "It's protected substantively, yes."
It should be noted that a "substantive right of privacy" was part of the rationale employed by Judge Gary Lancaster in dismissing the federal obscenity indictments against Extreme Associates – and in fact, Roberts testified that Justice Clarence Thomas' dissent in the landmark Lawrence v. Texas sexual rights case was that "the right to privacy protected under the due process clause ... did not extend to include the activity at issue in Lawrence." Why? Roberts never explained the distinction.
Roberts, of course, resorted to the time-(dis)honored technique of refusing to answer questions as to how he would foresee himself ruling on any particular issue that might come before the Supreme Court, but considering that Roberts' wife, an attorney, performed free legal services for the anti-abortion Feminists For Life; that the Bush administration is on record with an anti-abortion bias; and that Roberts' views on every subject of concern to the administration have likely been thoroughly vetted by Karl Rove and other top officials since last October, when Chief Justice William Rehnquist announced that he had advanced thyroid cancer, the possibility that Roberts has a single pro-choice bone in his body is vanishingly small. Ergo, Roberts' assurance that he would follow Supreme Court precedent on abortion rights as set out in Roe and Casey is likely a lie.
And why shouldn't he lie? Assume for a moment that Roberts, having assuaged senators' concerns about his respect for women's rights (including abortion), sails through the confirmation hearings and is unanimously (or nearly so) approved for the chief justice position – but once he takes his seat on the high court, he sets out to chip away, case by case, at women's access to abortion services – if he doesn't actively campaign for Roe v. Wade to be overturned altogether! What can be done?
Well, he could be impeached – but in the history of the U.S., only one Supreme Court justice has ever undergone impeachment, and that prosecution failed; the justice remained on the court. But there is no legal doctrine by which the Senate can say, "Hey, you lied to us; you have to give up your seat on the court." Admittedly, if various senators did conclude that Roberts lied outright during the confirmation hearings, they would be less inclined to accept statements from future Bush nominees at face value – but Roberts is only 50 years old; it's likely that he will lead the Supreme Court for at least 30 years – and a lot of damage to constitutional rights can be done in 30 years.
Bottom line: Watching the by-play of senator versus nominee can be entertaining and even informative, at least of the senators' views on various subjects – reactionary right Republican, Sen. Lindsay Graham, was particularly amusing when he stated, toward the end of Roberts' questioning, "Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?" – but don't assume that there's one word of truth in the answers John Roberts is giving to the questions posed. After all, of what benefit is it to Roberts to be honest?
(By the way, needless to say, Justice Ginsburg doesn't think the age of consent should be 12.)
