It was tucked away in a brief exchange between the Supreme Court nominee and one of the lesser lights on the Senate Judiciary Committee, a short, friendly conversation between John Roberts and Sen. Herb Kohl, D-Wis., that occurred just after lunch, when most in the gallery, I suspect, were trying to stay awake. But it may have been the most candid and insightful moment of a day on Capitol Hill that had far too little candor and insight.
Kohl asked Roberts if the candidate for chief justice regretted any of the stridently conservative memos he had written a generation ago while he was a young lawyer in the Reagan administration. Roberts’ answers ought to give hope to those millions of Americans who look at those early writings and cringe both at their harshness and at the idea that the man who wrote them soon will be responsible for the dispensation of so much “justice” for so many years.
“In many of these cases,” Roberts told the committee, “not only have I changed but the law has changed dramatically in more than two decades … certainly there are many areas where it appears that I knew more at 25 than I think I know now, at 50. I had a lot of different experiences in the intervening period that give you valuable perspective.
“I hope,” Roberts continued, that “I have grown as a person over that period as well, and that also gives you some perspective and that perspective might cause you to moderate your tone with respect to some areas and some issues. I certainly wouldn’t write everything today as I wrote it back then … .”
This is precisely what Roberts should have said – it is precisely what all of us should say if we ever get asked a form of that question – but it was a particularly notable and significant moment on Tuesday because of how many sensitive and smart things Roberts did not say when given the opportunity to do so. The nominee did not go out of his way, remember, to reassure his legal and political foes that he is not a monster – just as he did not go the extra mile to show his supporters that he is everything they hope he will be. His tone was calm and smooth and resolute, but the famous Roberts “modesty,” of which we have heard so much, was notably absent.
Except when he talked about attaining wisdom with age. The capacity to change, to grow, and to recognize the recklessness of youth and our own fallibility and foibles are qualities we ought to demand, not just wish for, in our judicial candidates. “Life is an experiment,” wrote the late, great Supreme Court Justice Oliver Wendell Holmes. Roberts, in those toss-away lines, indeed hinted that his will not be a static mind unwilling to open itself to new theories, new possibilities and the changing realities that mark the passage of every new year.
We need less ideology on our judiciary, not more, and more people in government everywhere who are more willing to recognize their mistakes and learn from them.
There were a few other, small signs that the committee’s work isn’t just an expensive and time-consuming exercise in self-satisfaction. Sen. Lindsay Graham, R-S.C., earnestly said Monday that he hopes Washington will “get back to the good old days where we understood that what we were looking for was well-qualified people to sit on the highest court of the land, not political clones of our own philosophy.” Indeed, too many of these political clones were in Room 216 of the Hart Senate Office Building Tuesday for the hearing.
You could see them all over the crowded, messy room, in their slick blue or black suits, whispering in each other’s ears and in the ears of their senators like some supercharged, digitally wired and connected peanut gallery. They are the politicians of tomorrow, perhaps, the ones who will be leading our nation toward and during the middle of this long century. For the sake of the rest of us, I just hope that some of those clones took away from Roberts’ words Tuesday the lesson that even the best and the brightest get it wrong sometimes – and that there is nothing to be ashamed about in admitting it.
Denver attorney Andrew Cohen is a CBS News legal analyst and a contributor to The Denver Post.
