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The Case For a 'No' Vote on Roberts

By E. J. Dionne Jr.
Saturday, September 17, 2005

"Where are you?"

That was the question Sen. Richard Durbin (D-Ill.) almost plaintively posed to Judge John Roberts as the Senate Judiciary Committee's hearings neared their conclusion. It is the right question.

Durbin wanted to know where Roberts's deepest commitments, his "core values," lay. Were there some causes to which Roberts would simply not offer his "legal skills" -- amply demonstrated in his life, and again this week -- as a matter of principle?

Roberts suggested there really were no such limits, or, at least, he wouldn't tell us what they were. "I've been on both sides of this affirmative action issue," he said cheerfully. Yes, but you can't be on both sides as chief justice. He fought the idea that his view of the lawyer's role "sounds like you're a hired gun," but that is exactly how it sounds. A chief justice is hired on behalf of all of us.

In his testimony, Roberts was brilliant, affable, engaging and amusing. He was also evasive, calculating and, well, slick.

"Would you say there's a general right to privacy?" Sen. Charles Schumer (D-N.Y.) asked Roberts. "I don't know what 'general' means," Roberts replied. Fair enough, though I wish Schumer had also asked Roberts what the meaning of "is" is.

How senators vote on Roberts -- and in particular how Democrats and moderate Republicans vote -- depends on where they believe the burden of proof lies. The accepted Washington view is that deference should be paid to a manifestly qualified presidential nominee.

Sen. Lindsey Graham (R-S.C.) said that some of Roberts's potential opponents seemed to be saying that "the only way you can have a good heart is adopt my value system." That, Graham insisted, does "a great disservice to the judiciary."

But the doubts about Roberts have nothing to do with his good heart. The issue is the power about to be put in his hands and into the hands of President Bush's next appointee -- power both will enjoy for life. The Senate and the public have a right to far more assurance about how Roberts would use that power than they have been given in these hearings. The Senate is under no obligation to give the president or Roberts the benefit of the doubt.

If senators simply vote "yes" on Roberts, they will be conceding to the executive branch huge power to control what information the public gets and doesn't get about nominees to life positions. The administration has stubbornly refused to release a share of Roberts's writings as deputy solicitor general. This is a dare to the Senate, and the administration is assuming it will wimp out. A "yes" on Roberts would be a craven abdication of power to the executive branch.

In keeping with Roberts's painstaking evasions, he wouldn't even express a view Thursday as to whether his deputy solicitor general writings should be released. That was the administration's decision to make, he said. "This was not your decision," Schumer replied. "But you carry its burden." Or at least he should.

Roberts might have helped overcome doubts if he had been more open about the memos he wrote during the Reagan administration, saying which he now agrees with and which he doesn't. On the whole, he slipped those questions by saying he was a "staff lawyer" working for his client. He did say, however, that he now believes that federal judges should have life tenure, an excellent reminder of the stakes here.

Schumer got so frustrated that he was reduced at the end of the hearing Thursday to asking Roberts what question he would ask himself that might be revealing. Roberts, with great affability, said he thought the committee had been "very effective" in the questions it had already asked.

By the end, the baseball metaphors of the early hearing had given way to gambling analogies. Schumer one-upped Sen. Joseph Biden (D-Del.), who had declared that senators were "rolling the dice with you, Judge." Schumer said Thursday: "This isn't just rolling the dice. It's betting the whole house."

That's right, and it's why as many senators as possible should vote no on Roberts -- by way of saying no to this charade. A majority of "no's," very unlikely to be sure, need not mean the end of his nomination. It would constitute a just demand for Roberts (and whoever Bush names next) to answer more questions in a more forthcoming way and for the administration to provide information that the public, and not just the Senate, deserves.

How many senators will have the guts to make that statement?

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