Roberts' Rope-A-Dope
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
An hour before Supreme Court chief justice nominee John G. Roberts Jr. began his day here on the anvil, his small table in Room 216 of the Hart Senate office building looked remarkably simple. There was a water glass turned upside down. There was a small white pad of paper and a No. 2 pencil, sharpened but not too much. There was a little white paper nameplate with the words "Judge John Roberts" on it. There was a small timer.
And of course there was a microphone.
There were no notebooks or briefing books. No stacks of papers or file folders. All those had been left behind in the many rooms in which Roberts had been busily preparing lately for these long, fractious hours before the Senate Judiciary Committee.
On Tuesday, it was just 18 slick politicians and one bright judge and by any reasonable standard the judge won out. You can lead a judicial nominee to the committee room, it seems, but no matter how much logic you throw at him you can't make him talk.
Roberts did a relentlessly successful job of rope-a-doping his Committee adversaries into frustration and exasperation while at the same time using his Committee allies to show off his penchant for talking down the role of judges in our society.
He recited many general statements of legal theory but, like the Constitution itself and all the legislation he soon will review as the chief justice, his words were ambiguous; capable of meaning completely different things to different people on opposite sides of the legal and political divide.
It's all well and good for Roberts to say, as he did over and over again, that he respects the rule and the role of precedent. But merely saying that doesn't distinguish Roberts in any way from virtually any other lawyer in the history of American law.
It's also fine to say, as Roberts did, that judges should be careful to make sure that the litigants before them have a right to seek relief from the courts. Of course they should. But that doesn't tell us about how quickly and firmly Roberts intends to shut the doors of our courthouses to people who have nowhere else to go.
It's a no-brainer for any nominee to say that judges should leave their personal beliefs out of the equation of judicial review. The question is whether that can ever be done and whether ability to do it is a genetic trait only in Republican judicial minds. And how about the whopper: no one is above the law? No kidding.
These truths should be so self-evident that they needn't be spoken. But they were — and when they were they were spun as news. Roberts in this way effectively scratched so many surfaces of so many important issues without actually answering anything on the merits that he'll probably have to file his nails before he takes the bench next month.
To Democrats on the panel, Roberts dodged and weaved and bobbed and then fell back, when cornered, on the nobly-stated, easily-sound-byted (and overtly cowardly) line that a nominee shouldn't answer questions about specific cases or issues that may come before the Court.
Roberts took the so-called "Ginsburg Test" for refusing to answer Committee questions — dubiously named in honor of the 1993 Court nominee, Ruth Bader Ginsburg — to a new extreme.
He invoked it so many times, and in such an eager fashion, that they ought to do a Saturday Night Live Skit about it — a guy gets asked if he wants fries or a salad and he answers that he isn't comfortable answering the question because it eventually may come before the Court.
To Republicans on the panel, Roberts was happy to expound upon all the many things a judge must not do, or say, or think, or resolve, when it comes to the law. He was happy to talk about how and why the judiciary must often and typically be a passive partner in the dance between governmental branches.
He thus gave succor to those on the right who hope that the newly-constituted Supreme Court will be less reluctant than its predecessor in striking down Congressional legislation or in challenging the authority of the executive branch.
For obvious reasons, the politicians now in control of the other two branches of government want a timid Supreme Court, one that recognizes, even embraces, this limited role for the third branch of government. Based upon his remarks Tuesday, Roberts is their man.
So, after six often brutally-arcane hours of questioning, after the makeup on the Senators got a little greasy and the water in the nominee's glass got a little low, we still know far less about nominee Roberts than we ought to know.
But in spite of the rope-a-dope, there are a few signs of clarity coming through the fog. We know, for example, that Roberts recognizes a constitutional right to privacy even if we don't know how extensive he believes this right to be.
We know that he doesn't have any particular problems with the current Voting Rights Act, as amended.
And we know that he does not like the idea of using foreign laws and rulings to guide domestic law — a trend that had emerged recently on the Rehnquist Court under the direction of Justice Anthony Kennedy.
But, mostly, all we know is that Roberts is a conservative man, a conservative lawyer and a conservative judge selected by a conservative president to be, in the hopes of his supporters, a conservative chief justice.
This should not be news to anyone despite all of the words, both high and low, spoken to and from that simple podium by the end of this long day.