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Roberts' advice: Talk, but say little

His strategy for Sandra Day O'Connor's confirmation hearings is likely to be a preview of his own, which start this week.

By BILL ADAIR
Published September 5, 2005



WASHINGTON - When John G. Roberts Jr. joined the Reagan administration in 1981, one of his first tasks was to coach Supreme Court nominee Sandra Day O'Connor on the art of dodging questions.

The strategy for her confirmation hearings "was to avoid giving specific responses to any direct questions on legal issues likely to come before the court," Roberts wrote in a 1981 memo. Instead, O'Connor would recite old cases to show "a firm command of the subject area and awareness of the relevant precedents and arguments."

O'Connor ducked questions but still won praise from senators. She was confirmed unanimously.

This week, Roberts will get to use his own strategy when the Senate Judiciary Committee holds hearings on his nomination to replace O'Connor on the nation's highest court. A Harvard graduate considered one of the nation's brightest legal minds, Roberts is sure to be an artful dodger.

"He is going to be able to talk a lot - and say absolutely nothing," said David Bookbinder, a senior attorney with the Sierra Club, which has not taken a position on Roberts.

Hearings for Supreme Court nominees are a relatively new phenomenon. There weren't many hearings until well into the 20th century, and, when there were, the nominee often did not attend.

"There seemed to be something unseemly about coming to speak in your own defense," said Don Ritchie, the Senate's associate historian. "There was a sense that you don't promote yourself."

Times have changed.

"Now they come to testify, but they really can't say anything," Ritchie said.

Nominees often invoke what is called "the judicial fifth," declaring they can't discuss an issue that might come before them on the court. They sometimes cite the American Bar Association code of judicial conduct, which says judges should not "make pledges, promises or commitments" on issues they might face.

The idea, Ritchie said, is that a judge is "supposed to be open-minded and make your decisions on the rule of law and your reading of the Constitution. If you have already announced in advance how you stand, it makes you less judicial."

Besides, too much candor can sink your chances.

Nominee Robert Bork's direct answers and swaggering style in his 1987 hearings rubbed many senators the wrong way. He was rejected 58-42.

Dodging questions minimizes controversy.

Roberts already has the support of most Republicans and is likely to pick up a fair number of Democrats if he does not take a stand against abortion rights.

The goal, said Stephen Hess, a George Washington University professor who prepped Ruth Bader Ginsburg, is "you don't want to offend anybody."

Democratic senators say they agree it is inappropriate to ask about cases that might come before the court. But they say a nominee should answer questions about broad legal issues and past Supreme Court decisions.

At his 2003 confirmation hearings to be a federal appellate judge, Roberts sidestepped many questions by saying he would follow precedents (" "Roe vs. Wade is the settled law of the land") or by giving the senators a history lesson about previous cases.

Democrats did not raise a fuss about those answers because, as a federal appellate judge, Roberts was expected to follow precedents. But as a Supreme Court justice, he could overturn them. So his legal approach and beliefs are more relevant.

"He's not going to be able to get away with just citing case law," said Mark Hurwitz, a professor of political science at Western Michigan University.

The hearings are scheduled to begin Tuesday with opening statements by Roberts and the senators. The questioning will start Wednesday.

Sen. Chuck Schumer, D-N.Y., said Roberts is obligated to be specific.

"I have long believed that federal court candidates - who serve for life - should explain their judicial philosophy and their method of legal reasoning," Schumer said. "They should be prepared to explain their views of the Constitution, of decided cases, of federalism and a host of other issues relevant to that lifetime post."

Like other senators, Schumer has carefully worded his questions to increase the likelihood that Roberts will give a revealing answer. Schumer plans to ask about Roe vs. Wade , a question Roberts may dodge. But Schumer will also ask about the right to privacy, a question Roberts might be more willing to answer.

Roberts' supporters say he should not answer philosophical questions.

"Judge Roberts's personal views on abortion are utterly irrelevant to how he would rule on legal questions before the United States Supreme Court," said Wendy Long, counsel to the Judicial Confirmation Network, a group that promotes President Bush's nominees. "Other nominees have declined to give their personal views, and Judge Roberts should too, lest anyone think such views indicate how he would rule."

Most Republicans on the committee are likely to endorse such a reserved strategy. But the often-unpredictable Sen. Arlen Specter, the Republican chairman of the Judiciary Committee, wrote in his autobiography that the Senate should not confirm nominees who refuse to "answer questions on fundamental issues.

"In voting whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy but should be able to judge based on the candidate's expressed views," he wrote.

The seven Democratic female senators have given the committee 40,000 questions for Roberts suggested by people around the country, including this one: "You're on a lifeboat, but it can only hold eight of the original 10 amendments without sinking. ... Which ones go?"

That one could be difficult to dodge.

--Bill Adair can be reached at adair@sptimes.com or 202 463-0575.

[Last modified September 5, 2005, 01:16:12]


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