Slate's Jurisprudence: Roberts and Privacy Rights

Alex Chadwick talks with Slate legal analyst Dahlia Lithwick about the confirmation hearing for Supreme Court Chief Justice nominee John Roberts. Lithwick analyzes Roberts' remarks about the right to privacy, abortion law and the balance of power between the courts and Congress.

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ALEX CHADWICK, host:

Joining us now for analysis of the Roberts hearings is Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY. She stepped outside the hearing rooms to talk to us.

Dahlia, let me just quote to you, if I may, from a piece that you filed yesterday after the hearings, just generally about the tenor of what's going on there. Quote, "Here's a man long accustomed to answering really hard questions from extremely smart people"--this is Judge Roberts you're speaking of--"suddenly faced with the almost harder task of answering obvious questions from less-smart people." That's the panel of senators you're speaking about.

DAHLIA LITHWICK (Slate): Well, yes. But you need to understand this man is probably one of the smartest living constitutional lawyers and thinkers today, and as smart and well-informed as these senators are, they're simply not in his league. And, in fact, you'll remember from the first day John Roberts said, `I just want to be an umpire. I don't want to catch or pitch.'

CHADWICK: Yeah.

LITHWICK: And Senator Biden started his questioning by saying essentially, `Not only would I rather pitch to anyone but you.' But Senator Fred Thompson, who we now know from "Law & Order," who was sitting directly behind him--he referred to Fred Thompson and said, `I'd rather pitch to Arthur Branch,' which is the character that Fred Thompson plays on "Law & Order." So he admitted right up front that they're all completely outclassed here.

CHADWICK: And according to your analysis so far, the Democrats on the committee hearing have just essentially given up. They've said, `This guy is going to get through,' and they're speech-making. They're not even really asking him questions.

LITHWICK: Well, I think in fairness, Alex, both sides are speech-making and that's been--you know, the whole sort of tone of this has been, `But enough about you, Judge Roberts. Let's talk more about me,' which is astonishing when you're trying to interview the nominee. But I do think that there was a sort of spiral downward yesterday. Senators Ted Kennedy and Joe Biden made at least some kind of effort to look like, you know, zealous lawyers who are prosecuting, you know, a squirming defendant, and they quickly gave up when it became clear that they were not only getting nowhere but they were starting to embarrass themselves. And later in the afternoon, the other Democrats on the panel were much more restrained, much more less inclined to try to play Perry Mason. I think they realized that they were getting nowhere and that they would just be better off being a little bit more mellow and tranquil and hope to get Roberts to at least cop to, you know, moderate beliefs in some fields rather than try to trick him with memos that are 25 years old.

CHADWICK: You write that the really smart thing that he's done is to adopt as his strategy humility, which he described as his judicial philosophy; you say it's his strategy for these hearings. What do you mean?

LITHWICK: Well, remember that the very first thing he said when the president announced his nomination several weeks ago was about how humbled he was and the word `humility' has been sort of inexorably linked with his name. Every time you read about John Roberts, you hear about how humble he is. And that's not just a brilliant sort of way to position yourself at a moment when everyone is terrified of activist judges; it's also a way to sort of disavow anything he did wrong in the past. So when he talks about these memos that he wrote 25 years ago, these incendiary memos that he wrote when he worked for the Justice Department under Reagan, he says, `Oh, you know, I actually had no opinion on that. You know, I was just working for my bosses,' or, `Oh, I was just parroting another speech that someone else was saying. You know, I am so humbled that I don't even have views on these issues. I didn't then and I don't now.' So at every level, it's sort of working to help him disavow any ideas that anyone tries to ascribe to him.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She's legal analyst for the online magazine Slate and a regular contributor here on DAY TO DAY.

Dahlia, thank you again.

LITHWICK: Thank you, Alex.

CHADWICK: And you're listening to DAY TO DAY. Stay with us. I'm Alex Chadwick.

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