Jack Beermann on the Roberts hearings

Jack Beermann, an expert on the U.S. Supreme Court, is a School of Law professor and the Richard L. Godfrey faculty research scholar. He recently spoke with BU Today about last week’s Senate panel hearings with Judge John G. Roberts, Jr., President Bush’s nominee for Chief Justice of the Supreme Court.

After last week’s hearings, some said Roberts said too much, others think he said too little. How would you characterize Roberts’ response?

He was very careful not to tip off people on his views about legal issues that are likely to come before the court. He could if he wanted to, but one view says it’s not appropriate; it would seem as if he’s prejudged cases he’s ruled on. [Supreme Court Justice Antonin] Scalia got in trouble [for that] and ended up not sitting on a case.

Roberts was very careful — he described his judicial philosophy only in general terms. He was not willing to give his own views about what he’d written as a Justice Department lawyer. That’s where the Democrats were most frustrated. There have been nominees in the past who have said “Here is my view, but I can’t say that is the way I’d decide.” He wasn’t willing to do that. For some, that was frustrating and others say he stayed within the limits of propriety.

What do his answers tell us about him?

He’s obviously got a very careful temperament. You could imagine even a well-prepared person being tempted to go beyond what they had prepared before sitting in that chair. So he’s good about sticking to his plan, and he always came across as very judicial. It says a lot in a positive way, about him as a person, and as a lawyer and a judge.

But the most interesting thing is that I’m not confident of what kind of justice he will be. Everyone is confident he will be a good Chief Justice, but no one has any idea about where he lies in the conservative legal spectrum. Given what we know, if we take him at his word, and discount his writing as a Justice Department lawyer, he could be anywhere from [David] Souter to Scalia and [Clarence] Thomas. He could be more liberal than the conservative, or most conservative, members of the court. It can make a world of difference on which direction the court goes in next 30 years. You’re basically picking someone with irreversible authority to change the Constitution, and you’re not allowed to know what they think. Would you hire someone to write your Constitution if you didn’t know their views? Basically, that’s what is going on.

Do you think the President was surprised, or could be surprised in the future about Judge Roberts?

This could be one of Bush’s big mistakes or a “colossal error in judgment,” as John Kerry would say, or it could be one of his great victories.

If it is inappropriate for the nominee to answer questions about how he or she would vote, what is the relevance of the hearings in this process?

The process has evolved into this public questioning of a nominee. It’s not a long-standing phenomenon. Until 1955, no one publicly asked questions of the nominee. Robert Bork, our most famously rejected Supreme Court nominee, made the point that it’s because of the court itself that [the nomination process] has become more political and more notorious. As the court has reached out to decide more important questions in the last 50 years, the general public becomes more interested. When Brown v. Board of Education was decided; a lot of people woke up. And [Justice Harry] Blackmun became known after Roe v. Wade.

I think it’s a good thing. People ought to be aware of who in government is making decisions. In general, I have mixed feelings about how Supreme Court rules. Sometimes, they are not deferential enough to Congress, and too willing to overrule what Congress wants. In the area of civil rights history, Congress has been more willing to grant people more civil rights through legislation than the courts [have]. The Supreme Court is a really conservative institution, except for about 15 years in the 1950s and 1960s. It’s designed to be that way. Congress is a more populist institution.

Also, it’s an interesting opportunity for the nominee to hear strong concerns of people he may not agree with. This is a big opportunity for them. It’s their one shot for the last 30 years to impress upon him what their concerns are. It has to be educational for the nominee, whether he is listening or not.

Have Roberts’ chances of being approved as Chief Justice changed?

It doesn’t seem like he won’t be approved. The question is how many Democrats will vote against him. Even if they voted on party lines he would be approved, but I think it will be stronger. His professed judicial philosophy is relatively moderate. The only reason to reject him is possibly that he did not provide enough information or refused to answer questions. He didn’t address his writings as a lawyer within Justice Department. He sort of said don’t hold him to that, but he didn’t describe how those views had evolved. I think a few [Democrats] will want to make a point.

What does this mean for the next nominee to be interviewed, the one who would replace Sandra Day O’Connor?

I think the next one is more important. Replacing the third most conservative person, even if you get a solidly conservative vote, won’t make that much difference. Roberts has a good temperament to be a good Chief Justice, but replacing the swing vote, that’s much more important. One thing we know about this president is that he marches to the beat of his own drum, regardless of what anyone else thinks. If I had to predict, I think he’d seek one identifiable more solidly conservative nominee. I think he’d be willing to fight that fight.