No One Can Succeed Like Dr. Roberts


There was plenty of senatorial questioning to laugh about in John Roberts' confirmation hearings. For instance, this winner from Jeff Sessions (R-Ala.):

So let me ask you, if you were sitting here, what question would you ask John Roberts so that you or us could be sure that we weren't nominating what I call an ideologue, someone who you might define as somebody who wants to make law not interpret law? And then how would you answer the question you asked yourself?

And this surrealist passage from Lindsay Graham (R-S.C.):

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because…

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials?

But there was some substance, too. For my money, the most useful senator was Russ Feingold (D-Wisc.), who not only produced the only moment where Roberts stammered and seemed unsure of himself (during a section on whether the judge should have recused himself from Hamdan v. Rumsfeld), but made the most of his time to press the future Chief Justice on civil liberties and Executive Branch power. Here's one example:

FEINGOLD: But at what point did you start thinking about the implications of [9/11], in terms of civil liberties and the challenges this…

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.

The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace. I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended. […]

FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective. I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here. So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions.