When Justice John G. Roberts was tapped by President Bush in July of 2005 to fill the retiring Sandra Day O’Connor’s position on the Supreme Court, neither he nor the President envisioned that he would be in the running for the position of Chief Justice of the Supreme Court. However, Chief Justice William H. Rehnquist’s death on September 3, 2005, of thyroid cancer, prompted President Bush to reconsider Roberts’ appointment. If confirmed, Roberts, 50, would be the youngest Chief Justice of the Supreme Court since John Marshall in 1801.

      In the announcement only two days after the death of the former Chief Justice, Bush remarked, "The Senate is well along in the process of considering Judge Roberts’ qualifications. They know his record and his fidelity to the law. I’m confident that the Senate can complete hearings and confirm him as chief justice within a month." Roberts was unanimously confirmed by the Senate to the United States Court of Appeals for the District of Columbia in 2003.

Questions, Questions, Questions

      On the second day of the confirmation process, during the first round of questioning, Roberts was questioned aggressively on abortion, the right to privacy as per the Constitution, the role of the judiciary in conjunction with the legislative and executive branches of government, and many of his written positions during his years as Special Assistant to then-U.S. Attorney General William French Smith, under President Ronald Reagan. Asked repeatedly about his views on abortion and women’s rights, Roberts tactfully dodged direct questioning by reaffirming his position that precedent must be upheld, and by stating that the role of the court is to uphold the Constitution, not to legislate from the bench.

      During the third day of the process, and the second day of questioning, the topics dealt with included a recent Supreme Court decision which allowed a municipality to seize private land in order to develop it for commercial purposes, disparaging comments made by some members of the federal judiciary about Congress, and the ‘right to die’ issue. Roberts responded that in the land-rights decision, the decision should be looked at in further detail by the appropriate legislature. Fielding chairman Arlen Specter’s (R-PA) comment about Justice Scalia’s comment that the Supreme Court must be the "taskmaster" of the Congress, Roberts replied, "Well, I don’t think the court should be taskmaster of Congress. I think the Constitution is the court’s taskmaster and it’s the Congress’ taskmaster as well and we each have responsibilities under the Constitution."

      Throughout the course of the day, several leading Democrats questioned Roberts’ reluctance to reveal his personal opinions about famous court decisions. Sen. Charles Schumer (D-NY) likened the process to a movie recommendation: "You are being less forthcoming. I know you’re doing what you feel is right, but you’re being less forthcoming with this committee than just about any other person who has come before us. You are so bright and you know so much, but there’s another aspect to this, which is letting us know what you think. You agree we should be finding out your philosophy, and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don’t get any answers.

      "It’s as if I asked you what kind of movies you like. Tell me two or three good movies and you say, ‘I like movies with good acting. I like movies with good directing. I like movies with good cinema photography.’ And I ask, no, give me an example of a good movie, you don’t name one. I say, give me an example of a bad movie, you won’t name one, and I ask you if you like Casablanca, and you respond by saying lots of people like Casablanca. You tell me it’s widely settled that Casablanca is one of the great movies." When asked to make a point, Schumer continued, "Yes, I am saying sir, I am making a plea here. I hope–we’re going to continue this for a while–that within the confines of what you think is appropriate and proper you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become."

      Roberts broke the tension that had been building throughout the day with his reply: "First, Doctor Zhivago, and North by Northwest." He paused for the laughter that followed, and then continued, "And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is that –turning this into a bargaining process. It is not a process under which senators get to say I want you to rule this way, that way, and this way and if you tell me you’ll rule this way, that way, and this way, I’ll vote for you. That’s not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes."

      On the final day of the hearings, Roberts was again questioned about his writings during his years with the Reagan Administration, this time on civil rights. Several Senators expressed concern about what they perceived as Roberts’ reluctance to express to them his personal opinion on cases, as opposed to the legal one. Sen. Schumer again commented, "Many on this committee, probably every one of us, some more than others, has been wrestling with how to vote on your nomination. I think my colleague from Delaware was on to something when he called this a roll of the dice. But this is a vote on the Chief Justice of the Supreme Court. You in all likelihood will affect every one of our lives in many ways for a whole generation. So this isn’t just rolling the dice; it’s betting the whole house. So now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be? Will you be a truly moderate, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter, and Friendly? Will you be a very conservative judge who will impede congressional prerogatives, but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve?"

      Senator Dianne Feinstein (D-CA) commented, "I think that Sen. Schumer really summed up the dilemmas and not only he has them on our side. Many of us are struggling with exactly that: what kind of a justice will you be, John Roberts?"

      Judge Roberts replied, "That is the judgment you have to make. I would begin, I think if I were in your shoes, with what kind of judge I’ve been. I appreciate that it’s only been a little more than two years, but you do have 50 opinions. You can look at those. And Sen. Schumer, I don’t think you can read those opinions and say that these are the opinions of an ideologue. You may think they’re not enough, you may think you need more of a sample, that’s your judgment. But I think if you look at what I’ve done since I took the judicial oath, that should convince you that I am not an ideologue. And you and I agree that that’s not the sort of person that we want on the Supreme Court."

      The Senate Judiciary Committee is scheduled to vote on Roberts’ nomination on Thursday, with the full Senate vote following early the next week. If he is confirmed, he will be in place for the fall session of the Supreme Court, which begins in early October. 

Senator Schumer (D-NY) frustrated at the answers of Roberts (AP)

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