The members of the Senate Judiciary Committee showed up in their Sunday best -- the men in the darkest of their dark suits, the whitest of their white shirts, and their most tastefully understated ties. The only woman on the panel wore pearls.
With all of them on their best behavior, the senators played their parts as though they were based on a character sketch provided with the script of a teleplay. The first day of the confirmation hearings for the nomination of Judge John D. Roberts to the top spot on the high court had all the drama of a made-for-TV movie – which is to say, not much drama at all. Here, formulaic predictability substituted for passion.
The presidency of John F. Kennedy is widely regarded as the nation's first televised presidency, one played perfectly by a telegenic First Couple. It took another 45 years to get the first made-for-TV Supreme Court hearings with a nominee as telegenic as Kennedy for chief justice, one who appeared, according to Senator Jeff Sessions, to have been sent “by central casting.”
Perhaps taking a cue from former Senator Fred Thompson, star of the television drama Law and Order and the Bush administration's point-man on the Roberts nomination, committee Chairman Arlen Specter played himself to a “T” -- just challenging enough to irk his fellow Republicans and appease the committee's Democrats. Specter promised to probe the nominee on some intemperate comments he made in his early years, comments that all but denied the existence of gender discrimination. Throwing a bone to liberals, Specter noted that “Phyllis Schlafly of the Eagles Forum (sic) said that they were smart-alec comments by a bachelor who didn't have a whole lot of experience, so she's putting on an understandable gloss on that subject.” Among Republicans, Specter was the only one who promised any probing questioning of the nominee. To a person, save for Lindsey Graham's speech about the philosophical debate surrounding the court's role, the rest simply counseled him not to answer probing questions.
Lacking the votes to defeat the nominee, Democrats appear to have agreed among themselves to use the hearings to stake out the values of their own party, foreshadowing the outcome with polite speeches that read, on the whole, like a list of talking points. Ranking member Senator Patrick Leahy took the point on compassion; Dianne Feinstein, by virtue of her gender, got the women's issues; Edward Kennedy evoked his family's legacy on civil rights; Richard Durbin took on religious liberty and privacy. Russell Feingold advanced his presidential ambitions by chiding the administration for withholding memos written by Roberts while in the employ of the Office of the Solicitor General during the first Bush administration, and promising to be tough but fair in his questioning, pledged to focus on voting rights and the death penalty. Charles Schumer argued for full disclosure by the nominee in answer to questions posed him by Democrats.
The only Dem who appeared to be off-message was Joseph Biden of Delaware, who waxed poetic on the Constitution and the great debate now engulfing it: whether its interpretation should remain frozen in time or evolve with the people it was drawn to serve. Biden got it right when he declared the Constitution to be “our civic Bible”; alas, the political landscape today has been overtaken by blasphemers.
What little drama there was in yesterday's hearings came from surprising sources: Feinstein and Tom Coburn. Coburn started to cry when speaking of the terrible polarization besieging our nation (as if he had nothing to do with any of it). For her part, Feinstein brought personal experience to bear when voicing her support for Roe v. Wade, telling of a collection plate passed for a college classmate's Tijuana abortion and another friend who committed suicide after learning she was pregnant. She then shifted gears to address the topic of religious liberty, running out of time before she finished recounting a story of seeing a memorial to the Jewish families who were gunned down by Nazis on the banks of the Danube River. The memorial consists of their bronzed shoes, which their killers had them remove before their final plunge into the water.
Throughout Feinstein's speech, the nominee bore an expression of empathy, his eyebrows slightly raised in concern. His is a most appealing face, one that bears all the hallmarks of the humility for which he is widely celebrated. To this jaded viewer, though, his humble countenance seemed a bit studied, especially in light of the snarky, “smart-alec” comments found in his early memos. There's no refuting his singular and impressive presence: He is at once the best and smartest boy in the class, a man you might want for a confessor, and a keen mind engaged thoroughly in the proceedings at hand.
When it was Roberts' turn, he opened by announcing he has “no agenda” and “no platform.” Then he fell back on a widely used baseball analogy, arguing that the chief justice holds the role of an umpire, not of a baseball player. He delivered that statement wide-eyed and without notes, but it sounded more like a speech committed to memory than extemporaneous remarks.
His rhetoric was sometimes soaring, as when he compared the “endless fields” of his native Indiana to the “limitless possibilities” of life in these United States. Most impressive was his description of his experience moving to private practice from his role as an advocate for the U.S. government.
“Here was the United States,” he said, “the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.”
Deftly moving between high oratory and the language of the common man, he circled back to America's favorite pastime, saying, “I will remember that it's my job to call balls and strikes and not to pitch or bat.”
And with that, he hit one out of the park.
Given the deferential tone of the opening day of Judge Roberts' nomination hearing, the danger exists that Democrats will miss the opportunity to throw the slugger a curve ball. It will not be enough to ask this skilled litigator to explain his views on what he has deemed a “so-called right to privacy -- perhaps the most pressing question of this entire exercise. His views on this critical issue as it affects women's rights to reproductive freedom will of course be probed, as Democrats have signaled. But the freedoms of every citizen are equally at stake; his views on privacy in the sphere of police and war powers will affect not only the outcome of the cases taken up by the high court on his watch, but also the degree of freedom accorded subjects of scrutiny of the Foreign Intelligence Security Act court -- the supersecret court that sanctions wiretaps and surveillance of United States citizens.
If he wins confirmation, Chief Justice Roberts will appoint the members of that court in an age when security has come to trump liberty. Roberts is already under fire for having decided, in his role on the D.C. circuit, a case in the administration's favor that upheld the use of extra-legal tribunals for suspects charged as enemy combatants at the very time he was being interviewed by the White House for a Supreme Court nomination. Feingold and Schumer wrote to Roberts last month, asking for an explanation, which came by way of Specter who provided defenses of the nominee written by two law professors.
So, don't stop at Roberts' views on whether or not a right to privacy presently exists in the Constitution. If he says no, then ask if he thinks one should. Roberts has made a great deal of his deference to the legislative branch in matters of constitutional interpretation. Ask, then, if the nation were to adopt a constitutional amendment granting an explicit right to privacy, how might that affect the current bent toward government intrusion into the private lives of the American people. And then listen -- listen very carefully.
Adele M. Stan has written on religion for Ms., Mother Jones, and The New Republic, and is the author of the blog AddieStan.