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Roberts Is Defined by His Calm
Patiently pretending that every question was sincere and thought-provoking, betraying neither irritation nor disdain, Roberts turned his answers into recitations of his favorite arguments.
Sen. Richard J. Durbin (D-Ill.) accused Roberts of employing "dance steps" to avoid describing his views on such topics as whether there is a constitutional right to have an abortion. "What is your position on Roe v. Wade ?" the senator asked.
Roberts answered mildly. " Roe v. Wade is the settled law of the land. . . . It's a little more than settled. It was reaffirmed in the face of a challenge. . . . There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
The answer neatly captured the proper deference that a lower court judge should give to Supreme Court precedents. But it did not exactly go to the question on Durbin's mind.
At another point, Sen. Russell Feingold (D-Wis.) tried to pin Roberts down on the death penalty.
"I think one thing that is unfair about the system is that it is not . . . certain, it's not definite, and there doesn't seem to be any reasonable time limitation," Roberts answered. "The effectiveness, if you believe in capital punishment, the effectiveness of capital punishment diminishes if the crime was committed 30 years ago. And if it takes that long to get through the system, it's not working, whether you're in favor of the death penalty or opposed to it."
The answer had something for everyone: For opponents of capital punishment, there was the framing idea -- that there is something "unfair" about the death penalty. But for supporters, he offered the view that appeals must be accelerated. His final note tried to gather up all sides -- whether "in favor of the death penalty or opposed."
All the answer lacked was an expression of Roberts's personal views.
This approach irritated some Democratic committee members who believed that Roberts might hold stronger beliefs than he was letting on, and they insist that he must be more forthcoming this time around. When the nominee paid a courtesy call to Durbin shortly after his nomination, the senator put Roberts on notice: "I said, 'If you will be more open and honest with your answers to us, it will go a long way,' " Durbin recounted in an interview.
Democrats are preparing for a far more extensive examination this time around. They have demanded more paperwork, hoping to find expressions of Roberts's political opinions. They have announced, from the moment he was nominated, that they expect him to answer questions about judicial philosophy.
"What we need to do is ask the obvious questions," Durbin said. "The country is closely divided and the court is closely divided, and we need to be sure that this institution is in the mainstream of American thinking."
But just as he did in 2003, Roberts probably will try to fend off such questions by citing the circumspect testimony of a Democratic nominee to the court, Ruth Bader Ginsburg. During her 1993 confirmation hearing, Ginsburg refused to go into the details of controversies that might come before the court.
"The reason that she thought it was inappropriate to answer that question is because it is an effort to obtain a forecast or a hint about how a judge will rule on a particular case," Roberts said in a typical response during his 2003 testimony.
So Roberts may be a bad bet for fireworks -- but the committee can often be counted on for vivid moments. No panel in Congress can match the Senate Judiciary Committee's recent record for partisanship, finger-pointing and road-blocking, not to mention computer espionage and hearing-room vulgarity. The 2003 grilling of Roberts ended with then-Chairman Sen. Orrin G. Hatch (R-Utah) chastising Schumer for asking "dumb-ass questions."
Roberts just listened quietly, unflappably -- and was confirmed soon afterward by a unanimous Senate.