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Examining The Layers Of Law

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


The law comes to us in layers, from the general to the specific, from broad sweeping concepts that are almost universally accepted to pliable standards that often are subject to debate to nitty-gritty rules that mark the battle lines in any given case.

Now that the public questioning of Supreme Court Chief Justice nominee John G. Roberts, Jr. is over, it's worth explaining how these various layers played into the Senate Judiciary Committee's work and how Committee Republicans and Roberts himself relied upon them to his great advantage.

Senate Democrats on the Committee wanted Roberts to share his views about those standards and rules — they wanted to get him to talk about the law at its roots, along the margins, where cases are decided and new law is made. They wanted him to get to at least the second layer of the law.

Senate Republicans on the Committee, on the other hand, were content to have Roberts talk mostly about the broader contours of the law, the surface-level ones marked by familiar grand phrases with which many Americans are comfortable. They were content to allow him to skim along the surface, the first layer of the law.

Neither side dared push Roberts too much to get down to the third layer — and rightly so. No judicial nominee ever should have to predict how he or she will rule in any particular case.

Every lawyer in America believes in the principle of stare decisis, for example, so it was absolutely inconsequential for the nominee to have made such a big deal about it. Likewise, his focus in his answers upon his stated reverence for the "rule of law" doesn't tell any lawyer or judge anything new or profound about his judicial philosophy.

Can you imagine any judge or lawyer coming before any legislative committee and expressing disdain for the "rule of law?" Of course not.

But as we saw during the Florida recount fiasco of 2000, the "rule of law" means many different things to many different people. This is surface-level stuff, enormously broad strokes, meaning so much that in this context it really means nothing at all.

So, for example, when Roberts mentioned that he believes that the Constitution includes a "right to privacy," Committee Democrats reasonably enough wanted him to go beyond that broad, universal concept to explain more precisely what that phrase really means to him. They quite rightly noted that conservative Supreme Court Justice Antonin Scalia's idea of the "right to privacy" is very different than what liberal Supreme Court Justice Ruth Bader Ginsburg's idea of the "right to privacy" is.

This is important because the "right to privacy" — whatever it means — is the foundation of the Court's abortion rights rulings and any other rulings that implicate the personal or intimate conduct or relations of the American people.

Most Committee Republicans, for their part, were happy to accept Roberts' recognition of a general "the right to privacy" in the Constitution. For them, this first-layer answer satisfied whatever obligation the nominee may have had to share his legal views and philosophies with the Congress before taking a seat on the High Court.

It allowed them, and the nominee, to say with straight faces that Roberts had been forthcoming about what kind of Justice he is likely to be for the next 30 years or so: a justice that recognizes privacy rights. It gave all of them political cover, you might say, to avoid having Roberts saying anything particularly controversial — or insightful.


It was a nifty sound-byte that made Roberts seem like he was saying much more than he actually was, and, of course, it made him sound like a legal "moderate" even though there is still great doubt about whether he is.

There was a ton of talk during the public questioning about what prior Court nominees had said, or not said, during their hearings. Committee Republicans reminded Roberts, and their Democratic counterparts, that plenty of Democratic appointees, including the last two, Justices Stephen Breyer and Ruth Bader Ginsburg, had refused to answer questions that sought insight into specific cases or issues.

The Republicans used this argument, over and over again, to justify Roberts' refusal to answer more than 100 questions that would have shed more light upon his legal views.

Democrats on the Committee, on the other hand, reminded Roberts and their counterparts that most of these past nominees actually had provided answers that went beyond nominee Roberts' first-layer answers to touch the "second" layer of legal reasoning.

These nominees, for example, didn't just merely say that they recognized a constitutional "right to privacy" they then went on to explain a little about the contours of that right and about its relationship to modern life.

Justice Ginsburg, for example, said this when asked during her confirmation hearing about a woman's right to choose: "[Y]ou asked me about my thinking about equal protection versus individual autonomy. My answer to you is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices."

This sheds a lot more light on her views than Roberts shed upon his with his first-layer response.

So, technically, both sides were right. There is strong precedent that suggests a nominee shouldn't be too candid in answering questions. But there is also strong precedent that suggests a nominee can get down to that second layer of legal analysis and insight without destroying his or her impartiality upon reaching the bench.

The difference is that one precedent supports the disclosure and dissemination of more and more vital information about a Supreme Court nominee and one precedent supports the obstruction of the flow of that information.

There was clear wiggle room for John Roberts between these two layers of legal reasoning. Yet on almost every occasion — on questions from both Republicans and Democrats — he chose to hew closer to the surface than to the roots; chose to say less than he could.

This choice will not and should not disqualify him for the high office he is about to assume.

But it does say a lot about his temperament, judicial and otherwise; about how concerned he and his supporters may have been with the idea of Roberts providing the Committee with more thorough legal analysis; and about how easily and quickly the fog of politics can envelope the dictates of the law.

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