WASHINGTON (BP)–The John Roberts confirmation hearings are over and, for the most part, conservatives liked what they heard.
During three days of questioning before the Senate Judiciary Committee Sept. 13-15, Roberts impressed both Republican and Democratic senators alike, speaking without notes, keeping his poise and even once or twice correcting the questioner.
Sen. Joseph Biden, D.-Del., called Roberts’ performance one of the best he had ever seen. Sen. Orrin Hatch, R.-Utah, went a step further, calling Roberts the most impressive nominee he had ever seen during his Senate tenure.
“If people can’t vote for you, then I doubt that they can vote for any Republican nominee,” Hatch said.
A vote in the Judiciary Committee is scheduled Sept. 22, with a floor vote to follow. Roberts is expected to be easily confirmed, although the number of Democrat votes he’ll receive is unknown.
Social conservative leaders have supported Roberts, even though he doesn’t have the extensive paper trail past nominees have had. But conservatives who know him personally — such as Jay Sekulow of the American Center for Law and Justice — say Roberts is one of them.
Throughout the hearings Roberts repeatedly referred to his belief in the “limited” role of the judiciary and his desire for “judicial restraint” — phrases that are music to conservatives’ ears.
If confirmed Roberts would become the nation’s 17th chief justice, replacing the late William H. Rehnquist, who was one of the three most conservative members of the court.
“We expect that the standard [Roberts] sets will be one that many others ought to follow, because he … has conveyed a belief that judges are not to impose their opinions onto the country, but they are to restrain themselves to the principles of the Constitution,” Wendy Wright, executive vice president of the conservative group Concerned Women for America, told Baptist Press. “If someone is restrained to the views of the Constitution, then that will bode well for the issues we work on.”
Conservatives have long been edgy about Republican nominees. Of the seven justices who joined in the majority opinion in the 1973 Roe v. Wade case that legalized abortion, five were nominated by Republicans (although one of the dissenters was nominated by President Kennedy, a Democrat). President Reagan, a staunch pro-lifer, placed three justices on the bench, yet two ended up supporting Roe. And President George H.W. Bush, also pro-life, nominated David Souter, who subsequently joined the court’s pro-choice and liberal bloc.
But conservatives are hopeful about Roberts, especially in light of several comments he made during the judiciary hearings:
— His analogy to baseball.
“Judges and justices are servants of the law, not the other way around,” Roberts told senators. “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”
— His reference to the direction the court will take under him.
“Given my view of the role of a judge, which focuses on the appropriate modesty and humility, the notion of dramatic departure [from the Rehnquist court] is not one that I would hold out much hope for,” Roberts answered.
— His view on the role of courts.
“I don’t think the courts should have a dominant role in society in addressing society’s problems. It is their job to say what the law is.”
— His dislike of using foreign law as precedent. (Conservatives have criticized some of the current justices for citing foreign law.)
“It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent because they’re finding precedent in foreign law, and [then] use that to determine the meaning of the Constitution,” Roberts said. “And I think that’s a misuse of precedent.”
In light of Roe, Roberts’ comments on legal precedent were widely analyzed. On one hand, he said, overturning the court’s own rulings serve as a “jolt to the legal system.” On the other hand, he said, the overturning of precedent has been necessary at times — such as in the Brown v. Board of Education decision that ended segregation.
At one point Roberts said Roe was “entitled to respect,” and several media outlets ran with the quote, placing it in headlines. But then Roberts expanded on the idea and said all Supreme Court cases are entitled to respect, such as the 1992 Planned Parenthood v. Casey decision that affirmed Roe. That ’92 case, he said, is a “precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.” Stare decisis is a legal doctrine that says a court should not overturn its own decision unless there is a strong reason to do so.
“He recognized the importance for precedent … but also said that there are times when overturning precedent is valid,” Wright said.
As deputy solicitor general under the first President Bush, Roberts argued for the overturning of Roe. But Roberts told the committee that his duties as deputy solicitor general were to represent the administration’s positions.
“I was promoting the views for the people for whom I worked,” he said. “In some instances, those are consistent with personal views, and in other instances they may not be.”
Roberts said he would not give his views on abortion and other issues that might come before the court because it would impair his role as an impartial observer.
Sekulow, who attended the hearings, applauded Roberts’ performance.
“He said from the very beginning, and throughout his testimony, that the courts have a limited role in our democratic republic, and that he is a servant of the Constitution and the rule of law, with no political agenda,” Sekulow wrote in an online analysis. “He set forth in simple and clear terms the doctrine of judicial restraint — in stark contrast to the judicial activism reflected in [the Sept. 14] ruling by a federal court in California that reciting the Pledge of Allegiance in public schools is unconstitutional.”
Liberal groups are urging senators to vote against Roberts, although that fact itself does not mean Roberts is conservative. Republican Sen. John Cornyn’s office sent out an e-mail during the hearings showing a National Organization for Women poster from 1990. It read: “Stop Souter or Women Will Die.” Souter, it turned out, became one of NOW’s best friends.
If Roberts does join the court’s conservative bloc, it would be significant — at 50, he could end up serving more than 30 years.
“No president in history has ever known for sure how their pick will end up once they’re on the Supreme Court,” Wright said. “So there’s always that bit of caution.”