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ELLEN GOODMAN Roberts' conservatism is a mystery


Published: Thu, September 1, 2005 @ 12:00 a.m.


BOSTON -- How did we end the summer on such a prickly little piece of the political landscape -- stuck between a Roberts and a hard place?
We have spent months poring over 60,000 pages from the National Archives and reams of personal profiles for clues about how John Roberts would rule on the highest court in land. And all we got from this paper trail is a handful of confetti.
The record shows him arguing both for and against affirmative action, for and against environment regulations. As a lawyer for Bush I, he wrote that Roe v. Wade should be overruled. As a nominee for the appeals court he called it settled law.
On the one hand, he characterized equal pay for comparable work for women as a socialist plot and wanted to water down the Voting Right Acts. His amusement at a woman who encouraged housewives to go to law school made Phyllis Schlafly (!) call him a "smart alecky" young bachelor.
On the other hand, he also wrote a memo suggesting Bob Jones III go soak his head. And as a private lawyer, he advised a gay rights group on how to put its best case forward in court.
But all in all, we still know less about the brand of conservatism he favors than the brand of ice cream: chocolate chip.
This has left any advocacy group or senator to the left of the Federalist Society marooned on a spit of no-win terrain. As NARAL Pro-Choice America discovered after its blunderbuss first ad, only right-wing groups can unfairly "Swift boat" a candidate. If the groups and politicians dissipate energy and money fighting a decent nominee, it will make the next fight harder. If they don't and he turns out to be another Scalia, supporters will be unforgiving.
The bottom line is that barring some last minute photo of John Roberts popping out of a cake at a KKK rally smoking crack, he's going to be confirmed. And if he were magically derailed, who would be next? Edith Jones? Michael Luttig? John Roberts may turn out to be as far right as People for the American Way says. But he may also be as good as it gets under this administration.
So having been pressed between a Roberts and a hard place by the administration's political mapping, the only way forward may be with a leap of imagination. A leap that says the Senate will only have done its job and the nominee will only have won his job when we know who Roberts is and what he believes.
Cynical laughter
Yes, I know. When I last suggested that Roberts speak freely in the hearings, the suggestion was greeted with hoots of cynical laughter. Roberts, after all, wrote the primer for Sandra Day O'Connor's confirmation hearings: "to avoid giving specific responses" while "demonstrating ... a firm command of the subject area."
The common wisdom is that only the most foolhardy nominee would do more. We're in collusion with the idea that a would-be justice's views are, in Harvard professor Larry Tribe's phrase, "for me to know and for you to find out." To find out, of course, after confirmation.
Roberts may have no opinion on issues that will face the court in the future from stem cell research to technology. A good jurist can't judge a case he hasn't heard. But judges aren't apolitical robots. He knows what he thinks about, say, the basic right to privacy, the powers of a president in wartime, the constitutional balance of church and state. And we know that he knows.
Why then do we have such low expectations about this piece of democracy? As Tribe says, "this is a guy who has enormous influence over our lives, our children's lives, our grandchildren's lives. The idea that how he thinks should be hidden is outrageous."
Judiciary Committee Chair Arlen Specter once wrote that senators "should resist if not refuse to confirm Supreme Court nominees who refuse to answer questions on fundamental issues." How did this get to be seen as a hopelessly naive idea?
Let us assume for a minute that this is not a game of "gotcha." In that case, the only ground to be gained is common ground, a shared understanding of a man who will never again have to face the public.
As for the genial John Roberts? He has nothing to lose by elegantly evading controversial questions. But there is something to win by being direct and open. He can defend the shrinking turf on which the Supreme Court of the United States itself must rest: respect.
Washington Post Writers Group


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