Silence is golden, or so goes the cliché. But these past two weeks Chief Justice nominee John Roberts has rowed some with evasive or outright mum answers to questions from the Senate Judiciary Committee. Having been passed through committee and steaming toward an almost certain outcome on the floor of the Senate, some wonder if we really know the man who will decide the most important national questions for a few decades to come.
The problem of Roberts is that nobody is sure about him ideologically. We know he’s more than qualified and one couldn’t imagine a better résumé for a nominee. But are qualifications all that matter? Should we have a clearer idea of Roberts’ ideology? I’m not sure. I do know that I’m not worried about his confirmation. Partly because it’s all but confirmed and also because he’s given me nothing major to fret about. But he’s been soft on reassurances too so I also know I could be dead wrong.
This week it was widely reported that big wigs of the religious right, those intent on preventing gay marriage and overturning Roe, were now tepid about their golden boy. Initially they trumpeted his nomination as the best thing Bush sent them since his education department made it harder for students to pay for college. But with his repeated non-answers some are starting to sweat. Here’s why. They know he’s smart and has a complex legal mind. Smart people with complex concepts of precedent and the rule of law tend to believe in things like the right to privacy even though no such right appears in the plain text of the Constitution. These ‘originalists’ (really there’s no such thing) hate such expansion of rights and prefer to stick to only those enumerated. So, Roberts gave them nothing to reassure them and thus, much to keep them awake at night. If he won’t say that there are no rights other than those explicitly stated in the Constitution then chances are he doesn’t view judicial review in such stark terms. And if things aren’t so stark with him then there’s trouble afoot for the planned rightwing takeover of the judiciary.
I’m honestly not concerned about Roberts if for no other reason than his intelligence. In order to go along with something like upholding Lawrence v. Texas one must be a hell bent ideologue with a flat brain and unidimensional reasoning apparatus – alla Scalia. Or make no effort to reason at all and just cheat off the guy sitting next to you – alla Thomas. Roberts is no such animal and may be the sharpest mind on the Court in a while. His intelligence alone precludes him from acting as the precedent busting bomb some had hoped Bush would lob at the high court. Could this mean the millions of dollars collected from tickets for both ‘Justice Sundays’ have some other purpose than remaking that branch of government. I don’t know but Tony Perkins better buy that fourth home before the lambs of God demand a refund on their contributions.
Roberts knows he has the Republican majority firmly in his camp and lined up with Bush. The worst that could happen is he says something that frightens some dems into running away from him and even that wouldn’t produce a strictly party line vote. Saying something concrete about overturning Roe, what some desperately wanted to hear, would only help shore up support from his key backers. He could only gain from flexing a pro-life muscle. But he made no such indications. His repeated silence on the issue could indicate he’s a stealth misogynist who can’t be contained with stare decisis… but I don’t think so. More likely is he’s not as hardcore a theocrat as some might hope and indicating that would hurt him because the religious right would then pull back their sheep army, instructing them to baaaaaah in unison for another nominee.
It is unlikely I will agree with Roberts on every decision he makes. I can’t think of any Supreme Court Justice with whom I uniformly concur. But it is very likely I’ll respect him once he’s on the bench. He’s too smart to be a disappointment. How do I know? Because he’s too smart to please the religious right even when squeezed in their vice grip. And smarts are both the key ingredient in a good judge and the best repellant against Pat Robertson’s ilk.
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