By Richard Cohen
Tuesday, September 27, 2005
For some time now I have been reading "The African-American Odyssey." It is the textbook assigned to ninth-grade students in Philadelphia, the first major city in the nation to require a course on African American history for high school graduation. The book is a smooth-enough read, nicely illustrated, short on cant and long on candor that filled in gaps in my knowledge and tells the largely miserable story of how black people coped with white racism. I wish John Roberts had read it.
I don't actually know that he hasn't -- I don't actually know much about him at all -- but every sign suggests he has not. From the memos he has written in his various federal capacities, what we see is a refreshing wit (always a good thing in dour Washington) but no hesitation when legal ideology collides with monumental historical wrongs. He knows his law, but does he know his history?
For instance, Roberts is opposed to affirmative action. So am I. But Roberts was opposed way back when he was a staff lawyer in the Reagan White House, which was way too early. It is one thing to argue that the work of affirmative action is done. It is another thing to argue that it never should have happened in the first place. The Philadelphia textbook suggests otherwise.
It is the same with other issues -- gay rights, civil rights, abortion, church-state separation and, of course, the intimidating reach of the federal government as it wages its war on terrorism, terrorists and librarians. There is almost nothing in Roberts's record or life story to suggest that he has any idea of what it is like to be the underdog. Nothing about the man suggests he knows what it's like to have a cop test your reflexes with a billy club or to be faced, down and out, with a calamitous pregnancy. If he knows such things, if he feels such things, then certainly none of it came out in his just-concluded confirmation hearings.
If you can simultaneously believe that "absence makes the heart grow fonder" and that "out of sight is out of mind," then you cannot fault me for thinking that the president is entitled to get his man on the Supreme Court but the Senate is entitled to an equal say. The latter is the position of Barbara Boxer (D-Calif.). She says the Constitution gives her and her colleagues "an equal role in the process," but her view, while understandable, collides with both reality and precedence. The president nominates and almost always gets his man. This -- the makeup of the Supreme Court -- is, after all, what we were repeatedly told the presidential election was really about. Who knew a cliche could be true?
So on Roberts, I remain agnostic. Not so on the hearings. Sen. John Kerry -- you remember him, right? -- called them "sterile," and he is right. But they were worse than that. They were dishonest. Roberts kept insisting that he could not answer this or that question because the matter might come before the Supreme Court. So what? I know where Justice Antonin Scalia stands on almost any issue you can name. Yet he continues to hear cases on which his views are known, and no one screams for impeachment. Why Roberts could not tell us in general what he thinks of, say, the government's right to send people abroad to be interrogated (or tortured) is beyond me. Yet when Sen. Russell Feingold (D-Wis.) asked him if he had any "concerns" about rendition, Roberts begged off. Well, what about slavery? Any thoughts about that, Judge Roberts?
This cannot do. Confirmation hearings have become a form of theater, with everyone playing an assigned role. Members of the Judiciary Committee bloviate and harrumph and the nominee does the witness version of Muhammad Ali's rope-a-dope. Roberts did this so well that no one laid a glove on him. No one learned much either -- not even whether he approves of sending some poor suspect to Egypt or Syria or some other place where hello is a punch in the mouth. Just what, exactly, does get your goat, Judge Roberts?
If I were in the Senate, I'd vote no on Roberts -- not because I think he's unqualified intellectually to be the next chief justice but because I fear an easy life has led him to easy answers. Judge Roberts will surely get his seat on the high court. He was virtually born to it. I wish, though, that I thought it remotely possible he'd read "The African-American Odyssey." It's about people who for too long a time were born to something else.