The hearings on the nomination of John Roberts to be chief justice of the U.S. Supreme Court may ultimately produce many dramatic moments, but few will rival one that occurred on the first day.
That moment came when Roberts, having heard speeches from all of the Senate Judiciary Committee members, had his first chance to speak.
In the hours before, one Democratic senator after another had lectured Roberts on what they thought he should do if confirmed to the U.S. Supreme Court. He was told that it was important, as a justice, that he strive to “expand freedom” and “respect the right to privacy” and honor the right of a woman to abort a pregnancy.
The common theme of these lectures was that Roberts has a big job as the “leader” of the court and the senators want to know if he “has the right stuff” for the task.
In response, Roberts made the point that he takes a much more limited view of his role as a judge and specifically said it would not be his job to establish public policy or to legislate from the bench.
One brief portion of his remarks spoke volumes about the difference between his views of the court’s role and the more expansive view of some Democratic members of the committee.
Roberts said it was after he left the Justice Department and began arguing cases against the government that he fully appreciated the importance of the Supreme Court.
“Here was the United States, 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. That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men.”
That passage is in sharp contrast with the views of some senators who seem especially concerned about the rights of women, gays and lesbians, racial minorities or other groups.
Roberts, in his comments, showed he has a deeper understanding of the court’s role. In his private cases, he acknowledged that he had to show that the law was on his side and that the government was wrong before “all that power and might would recede in deference to the rule of law.”
The clear implication is that while it would be wrong for the court to always favor the rich and the powerful, it would be equally wrong if it always favored some other group. What is important is that there be a set of principles that favors everyone, precisely because it favors no one.
The questioning of Roberts will, of course, become more specific, but so far he’s gone a very long way to satisfy those who believe courts have assumed too large a role in the lives of Americans.
If there is a central irony in the hearings, it is that Roberts is being extensively questioned about his respect for prior court precedent by senators who themselves haven’t always been supportive of prior court precedents.
Roberts has been pressed repeatedly as to whether he considers the Roe vs. Wade decision a precedent deserving of special deference. The nominee has so far stuck to his position that Roe vs. Wade is settled law and is entitled to respect.
To the disappointment of some of his questioners, he has stopped way short of saying the court should never reverse directions, pointing out that there have been many times when prior precedent is overturned. That response, while it may distress some liberals on the committee, makes the conservatives like him even more.
With this nominee, there will be no repeat of the Robert Bork hearings of 1987, when a Senate majority denied Bork a seat on the Supreme Court.
The question this time is not whether Roberts will be confirmed, but rather by how large a Senate majority.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
