One of the most dyed-in-the-wool, anti-abortion conservatives in Congress, Rep. Trent Franks of Arizona, showed up at the John Roberts confirmation hearing Wednesday afternoon to shake the judge's hand.
Why? "He's somebody I’ve supported strongly for a long time.... We have mutual friends," Franks said.
The former head of the Arizona Family Research Institute, a group affiliated with conservative radio host Dr. James Dobson, Franks is an ardent supporter of private school vouchers and a stalwart opponent of abortion. Franks had never met Roberts before Wednesday, but had friends who vouched for him.
Reputation is the guarantor of a job applicant, and for conservatives, the word of mouth is re-assuring on the nominee for chief justice.
What Roberts himself has said in the past three days of testimony has been sometimes cryptic, sometimes noncommittal.
Assures Right on foreign precedents
On only one issue has Roberts sent explicit signals to the Right: assailing the use of foreign legal precedents in Supreme Court decisions.
People on the right are alarmed that Justice Anthony Kennedy cited foreign law in the opinions he wrote for the court in Roper v. Simmons, striking down the death penalty for murderers under age 18 and in Lawrence v. Texas, declaring a new constitutional protection for sodomy.
In “foreign law, you can find anything you want,” Roberts told the Judiciary Committee Tuesday. “If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever… 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 use that to determine the meaning of the Constitution.”
“Given this man’s consistent commitment to interpreting the Constitution as it’s written we have a great deal more reason for optimism with Judge Roberts than we did with Justice Kennedy,” Franks said.
Roberts has resisted being labeled by senators.
Just like Clarence Thomas?
Sen. Charles Schumer, D-N.Y., tried to link Roberts Wednesday with Clarence Thomas, the justice with the most consistent view that the Constitution should be read exactly as written in 1787 and subsequently amended.
“You're unwilling to differentiate yourself from Justice (Clarence) Thomas's view on Lawrence v. Texas,” Schumer said by way of accusation.
Then he asked “Are you in the mold of Thomas and (Antonin) Scalia? The president said he wanted to nominate people that way.”
Roberts had his answer ready, “I will be my own man on the Supreme Court, period.”
Judiciary Committee Democrat Sen. Joseph Biden of Delaware said Wednesday he suspected Roberts had a far more limited view of individual rights than he appeared to have.
Chiding a group of reporters for what he felt was too lenient treatment of Roberts, Biden said, “A lot of your newspapers have written that this guy has a fairly expansive view of individual liberties, but then you look at the right-wing blogs, and they say, ‘Hey man, this guy is just great.’ Well, I can understand why. He has not given any indication” on whether he thinks there is a constitutional right to engage in same-sex relationships.
More liberal than meets the eye
From the conservative point of view, there is a woeful half-century saga of Republican presidents appointing to the high court justices who turn out to be liberals on issues such as abortion, the death penalty and gay rights:
- Earl Warren and William Brennan, appointed by Dwight Eisenhower
- Harry Blackmun (author of Roe v Wade), appointed by Richard Nixon
- John Paul Stevens, appointed by Gerald Ford
- Anthony Kennedy and Sandra Day O’Connor, appointed by Ronald Reagan
- David Souter, appointed by the first president Bush
The Right will be profoundly disappointed if Roberts turned out to be another Souter.
“Our hopes and prayers are with you,” Sen. Sam Brownback R- Kan., a social conservative, told Roberts as he ended his questioning of the nominee Tuesday.
“There are millions of people deeply concerned about the Supreme Court and the stands it takes on the social issues,” Brownback told me later. “A lot of people believe the court is trying to change the culture on life, the end of life, and marriage. They would rather that those decisions be discussed and moved as a culture and a people, not stomped on by the Supreme Court. I think he understands this fully from his background and his experience.”
Still Brownback cautioned “a lot of conservatives in the country are very nervous about him because he doesn’t have the track record.”
Yet, Brownback said, “It’s different than Souter — because the personal contacts that people had from Souter, they were all saying, indicated he would move left on the court.”
And so Souter did.
Heading toward confirmation
At this point, heading into his final few hours of testimony Thursday morning, Roberts looks unstoppable.
Roberts has helped himself by coming across as smart, witty, and not eccentric.
His endorsement of the 1964 Griswold decision striking down state laws banning contraceptive use by married couples showed that he is not willing to do un-do all 20th century jurisprudence.
Despite his Harvard pedigree, he comes across as a decent Middle American guy, not abrasive and didactic as Robert Bork did in his 1987 hearings.
“I had a middle-class upbringing in Indiana," Roberts said Wednesday. “I worked in the steel mills outside of Gary” during the summers.
This hearing comes at just the moment when President Bush, if one believes the , is at the lowest point of his presidency.
Just as Bush has been weakened, Roberts has given Republicans someone to applaud.
He warmed the hearts of Franks and other Republicans by pushing back at his Democratic interrogators, telling Schumer the confirmation hearing was “not a process under which senators get to say, ‘I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.’ It’s not a bargaining process.”
And no matter how weak Bush might appear to be, the president still has 55 Republican senators to work with.
When his father appointed Souter to the court in 1990, he was confronted with a Senate that had 55 Democrats and 45 Republicans, exactly the reverse of what it is today.
With a Democratic Senate, you get Souter, with a Republican Senate, Roberts.