Roberts confirmation and roberts hearings and senator kennedy and brown v. board of education

I am listening to the hearings as I write. At this moment Senator Charles Grassley, R-IA, is offering up softballs for Roberts to hit out of the park. He is giving Roberts opportunities to "set the record straight" on various things that Senator Kennedy had asked. Most of what I have heard so far regarding comments on the process focus on how Senator Kennedy characterized Roberts' views as an Assistant to AJ William French Smith in the first Reagan Administration. Kennedy spoke of some of Roberts' writings as "narrow, mean-spirited, and cramped," and that his use of words like "burned" in a memo after Civil Rights had been extended showed that Roberts was really an unfaithful ally in the "march" of Civil Rights. As might be expected, Roberts handled the issue in two ways: first by saying that Kennedy had mischaracterized his views and second, that he was simply working for his employer, the Administration, and therefore had to be faithful to what they asked him to do. Now, as I continue to write, Senator Biden is grandstanding, taking 7 minutes to get to his first question.

The Emerging Picture

Roberts is presenting himself as having no particular judicial philosophy, but being a careful and modest person, bound by precedent ("stare decisis"), listening to his colleagues, and declaring that the line between interpretation vs. making law is usually pretty clear. I have a sense that Roberts, actually, is correct. In most instances once you look at the facts of a case closely and the precedents and statutes that are in play, the decision you come to is pretty clear. But he has not been pressed on a particular issue that I think is important. The Supreme Court not only decides cases, some of which are very difficult, but also decides to decide cases. That is, a judicial philosophy has to enter in on considering even the agenda of the Supreme Court. By saying that he would simply decide cases as they come to him, he really is ducking a very important issue--and I am surprised that no one, so far, on the Judiciary Committee has pressed the issue.

Kennedy

But the real concern I have is this. I want to argue that Senator Kennedy has just dropped the ball, even as he appeared to be honing in on lots of memos Roberts wrote that may have been "mean spirited" and "cramped." He dropped the ball in his questioning Roberts on Brown v. Board of Education. This major Civil Rights precedent from 1954 is the first of the many decisions celebrated by those in the "movement" who now tell the story of the "march" of Civil Rights by celebrating this 1954 decision, as well as statutes from 1964, 1965, 1982 and 1988. So eager was he to get to the 1980s and the extension of the Voting Rights Act of 1965, however, that he ignored a historical issue with Brown. Everyone, who wants to get on the Supreme Court, has to agree that Brown was rightly decided. It struck down the 1897 precedent of Plessey v. Ferguson which argued that "separate but equal" facilities were constitutional. The Warren Court in 1954 held that such facilities in education were inherently unequal. However, the means the Court got to that decision was through sociological studies. They didn't talk about the history of the 14th Amendment, the nature of their duty to uphold precedent, their "close reading" of a statute. They simply referred to current studies that showed that separate facilities on education have a negative impact on the minority races.

But the question Kennedy didn't ask, and which would have been revelatory, is 'did the Court reach the right decision in the right way?' This would have told us something about how Roberts thought. He couldn't easily have "ducked" the question because it was decided more than 50 years ago and isn't an issue that would "come before the Court." But the way the Court decided the issue was really quite radical and, in the flurry of memos and decisions following the decision's release, most conservatives felt that the Court reached the wrong decision and they reached it in the wrong way. When the 1950s turned into the 1960s, however, it became harder and harder for responsible people to oppose the results of the decision, even though the way the Court got to the decision was very objectionable to conservatives. Yet, they couldn't make that point either, for fear of being labeled racists. But the smoke has cleared from the decision, and we now know that the mode of thinking represented in Brown was actually something that provoked a major reaction leading, for example, to the formation of the Federalist Society in the early 1980s--and Roberts was on their leadership roster in the 1990s. Thus, the Democrats have dropped the ball on probing really how Roberts would think by asking him how he would analyze how another Court thought.

Conclusion--The Hearings Are Over

Because the Democrats didn't show themselves able to join in on precise issues (like the type of reasoning in Brown) they have become reduced to grandstanding and speechifying. One could have wished for more skillful questioners.

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