Slate's Jurisprudence: Roberts Revelations, So Far

Supreme Court Chief Justice nominee John Roberts endured tough questioning from Senate Democrats in his confirmation hearing. Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about what's been revealed concerning Roberts' views on separation of church and state, anti-discrimination laws and the relationship between the courts and Congress.

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ALEX CHADWICK, host:

And joining us again for her view of the Roberts hearings is Dahlia Lithwick. She's the legal analyst for the online magazine Slate and for DAY TO DAY as well. She's been covering the hearings all week.

Dahlia, let's just start here. Judge Roberts has said that he's more willing than previous Supreme Court nominees to answer questions posed by the senators. Still, he's refused to answer many, many questions. How does he say that, and is there any truth in it?

DAHLIA LITHWICK reporting:

It is certainly true that he's refused to answer many, many questions. We've been running all week a reader contest at Slate where we have people guess how many times Roberts is going to say, `I can't answer that question because it will look like I'm prejudging something that's going to come before me,' and all the readers who are guessing in the 90s are already out of contention because it's closer to a hundred. But he's true in saying that he's been more forthcoming than some nominees. Certainly Antonin Scalia, for instance, wouldn't even discuss Marbury vs. Madison, you know, a case from 1803. So I think Roberts probably is going to shake out somewhere in the middle. I mean, he's definitely talking about some cases, which is more than some nominees. He's much less forthcoming, for instance, than Ruth Bader Ginsburg, who was willing to talk quite candidly about her views on abortion. He's sort of created a rule that says `I get to decide when it crosses the line,' and it seems like virtually everything crosses the line.

CHADWICK: Writing in your column in Slate, you note that some of the senators have kind of given up on questions of law and they want to talk about John Roberts as the man. They want to talk about what's in his heart. What would we get from that?

LITHWICK: Well, I think probably the best sort of articulation of this problem came from Senator Dianne Feinstein from California, who started to refer to Judge Roberts as a legal automaton. She said, `You know, you're answering all these questions and you sound like a perfect legal brain, but I'm not getting a sense of what's in your heart.' And so a lot of time yesterday and today were sort of assaults by these senators on his heart, trying to get him to tell them what would you do if, you know, you were at an end-of-life decision point for your family and you had to decide whether you were going to make the decision or the state should make the decision, and he refused to answer. `Well, what if it wasn't your family? What if it was you, Judge Roberts?' you know.

CHADWICK: Yeah.

LITHWICK: There was a long exchange today about whether he would be just a hired gun and represent anyone who came in as an attorney or if he would only represent causes that he believed in. They're claiming, by the way, Alex, to get absolutely nowhere with this line of questions because he tends to answer questions about his heart like a robot.

CHADWICK: All right, Dahlia, this is probably the last day of the hearings. This is going to go to the full Senate. If Democrats want to vote no on Judge Roberts, what are they going to say is their reason for voting no? Is there anything in these hearings that would make him a bad bet for the court?

LITHWICK: Well, I think they're going to say that the burden of proof was on him to show that those memos he wrote in the '80s, those very, very sort of fiery ideological memos that were quite dismissive of women and minorities--that those weren't really him. I don't think he's disproved that; he's just said, `Well, I was just following orders.' He keeps talking about the court as a place that, you know, the only thing that matters is the rule of law. And what they keep asking him--Democrats on the committee--`Are you going to expand rights and freedoms? Are you going to expand them or contract them?' So they're sort of asking this sort of almost touchy-feely question about `We need to know you're dedicated to the little guy,' and he keeps saying, `I'm dedicated to the Constitution. I'm dedicated to the rule of law.' So depending on whether you think the rule of law is the end in itself here or whether the end in itself is using the courts to sort of advance an agenda, I think it's quite clear he's not going to use the courts to advance an agenda, and some Democrats are finding that very troubling.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She's the 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 can hear more highlights from today's hearing and read an analysis of the proceedings at our Web site, npr.org.

I'm Alex Chadwick. This is DAY TO DAY.

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