Questions for John Roberts: In Re: John G. Roberts, part III -- Voir Dire

Byron King writes about the Senate Committee grilling John Roberts about his qualifications to be a Supreme Court Justice, points out the Questions they will ask, and says what questions they should ask.

“All you need is the music and the mirror” — Cassie, from A Chorus Line

A Chorus Line opened off-Broadway in April 1975, and then after a smashing, boffo success story, moved onto Broadway proper. It ran for 6,137 performances, closing in 1990. It is still being performed, from high schools, to summer stock, to big league reviews. For anyone who has somehow managed to miss this icon of American theater art during the last 30 years or so, it tells the story of a grueling audition in which 17 aspiring hopefuls are vying for eight slots in a fictional stage chorus.

The story within the musical offers a glimpse behind the smiling and ambitious faces on stage. The plot searches into the minds, if not the hearts, of these aspiring artistes. What price will they pay for a spot in the limelight of show biz? A nationally known stage actor once explained to me that A Chorus Line defines why a lot of people go into live performance, and in particular why a lot of immensely talented people pursue a career path in musical theater.

A Chorus Line boasts such classic and memorable songs as its anthem, “What I Did For Love,” and the simply delightful tune, “Dance, Ten; Looks, Three.” This latter song title, in just four little words, speaks volumes about the nature of life’s good fortune and its misfortune.

But for my money, the signature song of the musical is “One,” which sums it up best. The song starts out all cheery razzmatazz: “One! Singular sensation! Every little step she takes.” It has a great beat, and the cast of the show kicks their legs and dances to its dynamic lyrics. Then, in the finale this tune becomes a hymn to sheer ego. Because when you are angling for a place in the important history books, if not for immortal stardom, “One” is really the only number that matters.

Questions for John Roberts: John Roberts’ Audition

In a scenario somewhat similar to that of A Chorus Line, Judge John G. Roberts will soon make his stage debut before the American public. Like Cassie, whose great line is quoted above, Judge Roberts is auditioning for a rare opening on the nation’s highest court, that of chief justice of the United States. It is truly the role of a career.

Judge Roberts has been nominated to occupy the central seat behind the highest mahogany bench in the land. He is auditioning for a lifetime gig in the white marble theater just across the street from the U.S. Capitol. He wants to be “One.”

Unlike Cassie, however, Judge Roberts will not be part of a group of aspirants for the job. In a numbers game that turns A Chorus Line on its head, Judge Roberts will be all by himself this time, sitting at a table and facing 18 U.S. Senators. The Senators will hear witnesses, and then quiz Judge Roberts on all manner of subjects, before finally voting to confirm him, or not, to one of the highest offices in the land.

Since the first days of the Supreme Court, in the early 1790s, there has been a person called the “chief justice,” although the Constitution does not specifically establish the role, except by implication. That is, the Constitution identifies the job in connection with naming who will preside over impeachment trials conducted by the Senate.

The modern chief justice plays a role that has evolved over time, as the federal judiciary has grown in both size and scope of responsibility. There is some, relatively minimal, statutory control over the roles and tasks of the chief justice. But most of the job is guided by over two centuries of custom, tradition and practical procedure. There is no one place to look for a definitive job description.

Among other things, the chief justice presides over a group of more than 2,000 federal judges, including about 1,200 with life tenure. (They say that it is like herding cats.) The rest of the judges, including magistrate and bankruptcy judges, serve for fixed terms. The judicial branch of the U.S. government includes a staff of over 30,000 and runs on a budget in excess of $5.4 billion per year. Just about all of the important administrators within this cadre are selected by the chief justice. And as Ronald Reagan used to say, “People are policy.” So in his own way, the chief justice can influence the legal climate of the entire nation. It behooves us all to have someone in the job who knows what he is doing. It behooves us all to know who that person is as well.

For many weeks, anyone who is curious about John Roberts has had an opportunity to read and peruse much of what he has written in his lifetime. If you wanted to read his application essay to a private high school, it was there. If you wanted to review his writings as a youthful legal adjunct in the political engine room of the Reagan administration, the documents were available. If you wish to peruse his briefs as a lawyer or his decisions as a federal judge, the “Roberts Papers” have been posted on the Internet for the entire world to review.

If you missed out on reading any of the 80,000 or so pages of documents by and related to John Roberts that have been scanned and made available, you have only yourself to blame. And perhaps you should just learn to manage your time better.

But now comes the live feed. I have to confess that I love kicking back and watching C-SPAN broadcasts of important hearings. I hang on every word of a good give-and-take. When a really smart person just starts to talk about a subject in which he or she is a master, I am hooked. I listen and watch the body language. I am sure readers know this, but you can learn a lot by just keeping your mouth shut and listening to people who know what they are talking about.

On the other hand, and just to complete the foregoing thought, I cannot bear to watch the truncated versions of so-called “television news,” with its few-second sound bites that attempt to summarize something that is otherwise important. In the “all-the-news, film-at-11” format, one sees or hears something, but, often as not, learns little or nothing. Taken out of context, images are images and words are just words. And people see or hear exactly what someone else wants them to see or hear. Time permitting, I want a ticket to the whole show. I will sit in the front row and bring my opera glasses.

Questions for John Roberts: The Questions Senators Will Ask

My big problem is that, in order to listen to John Roberts talk, I am going to have to listen to a bunch of Senators ask him questions. As I have said in an earlier article, these are more political hearings than an inquiry into the state of current American jurisprudence. Sure, there will be a lot of discussion about this statute, or that case holding, or some judicial philosophy or another. But taken as a whole, the Senators have their own agendas.

The Republican members of the committee will, for the most part, be asking questions that are designed to politically elicit support for the nominee. The Democrat members, for the most part, will be asking questions that are designed to justify a reason not to vote for this particular nominee of the Bush administration. When you boil it all down, these members of the federal House of Lords will pretend to ask Judge Roberts intelligent questions. And Judge Roberts will pretend to answer them.

Sen. Dick Durbin (D-IL), for example, has reportedly stated that he intends to ask Judge Roberts some questions about the “privacy clause” of the U.S. Constitution. If Judge Roberts replies with any answer other than that there is no “privacy clause” in the U.S. Constitution, then he should not sit on the Supreme Court, let alone occupy the seat of chief justice.

No “privacy clause,” you ask. If you do not believe me, take a look for yourself. Read the document. There is no “privacy clause” in the U.S. Constitution. What we live with in this nation is a court-created “right to privacy,” dating from a 1965 Supreme Court case called Griswold v. Connecticut . The “right to privacy” is purely a creation of several Supreme Court justices. It might be a great idea (and it might not be a great idea, considering that what a court gives to you it can also take away). But the “right” is not stated explicitly in the Constitution.

On the other hand, there is a very clear and explicit “gold and silver” clause in the U.S. Constitution. (Article I, Section 10, if you are interested.) The U.S. Supreme Court all but nullified the clause when it decided the “Gold Clause Cases” on Feb. 18, 1935. For all of the inquisitive legal scholars out there, see Norman v. Baltimore & Ohio Railroad Co .; United States of America, Reconstruction Finance Corporation, et al. v. Bankers Trust Co. and William H. Bixby, Trustees ; Nortz v. United States ; and Perry v. United States.

In these four cases, the U.S. Supreme Court upheld the constitutionality of the Gold Repeal Joint Resolution of Congress of June 5, 1933, characterizing it as a valid exercise of the power of Congress over the national money system, arising from powers delegated by the U.S. Constitution. A “valid exercise”? Some might argue that it was an act of utter economic ignorance, political expediency, and a prima facie violation of the exact wording and intent of the U.S. Constitution. But the Supreme Court is there to interpret the Constitution, not to save the nation from its own political folly.

The result of the Gold Clause Cases is that for the past 70 years, the United States has been exclusively using a depreciating national fiat currency with which to run its economy. Do you understand what that has meant to the historical development of the U.S. economic and political systems?

Think about it. Would the United States be the nation that it currently is, absent trillions of dollars of accumulated deficit spending by its national government? Would the United States be a so-called “superpower” in the world if its government had to pay its bills in gold? Do you have any understanding or feel for how this Supreme Court-sanctioned monetary phenomenon has accelerated extraction and use in the U.S. economic system of the Earth’s otherwise scarce resources? Do you care? Hint: “Peak Oil.”

But getting back to the Roberts hearings, do you want to bet that none of the Senators will ask Judge Roberts about that rather technical point of black-letter constitutional law embodied in the Gold Clause? Too bad that Rep. Ron Paul (R-TX) is not a U.S. Senator.

I can almost hear the questions now, days before the gavel drops. The Senators will ask Judge Roberts about his views on abortion. (Do you care to guess which Senators that will be?) They will ask him about prayer in the schools, and displaying crosses and Stars of David, if not the Ten Commandments, in public spaces. They will inquire about his views on prior restraint, search and seizure, DNA evidence, and the death penalty. They will discuss civil rights and the Endangered Species Act. They will ask about conflicts of law between federal circuit courts, perhaps inquiring into such vital national matters as the shifting burdens of proof under the Age Discrimination in Employment Act. They will surely bring up points of law on interstate commerce. There will doubtless be questions on the role of treaties and international law in American jurisprudence.

These topics are important, every one of them. They are more important to some people than to others, but there is no denying the significance of any of them. Each of the topics has been the subject of bitterly contested court battles. And people write books on these issues. Getting to the root of things, there is a lot of money in play, depending on how these kinds of matters get decided. So the hearings will be informative, and at times they might even be amusing. But the confirmation hearings will also be a lot like watching a bunch of legal wonks studying for their bar exams.

My concern is that at the end of the hearings we will know little more about John Roberts than we know now. And what is it that we know? We know that he is a very smart guy. We know that he edited the Harvard Law Review. We know that he has read a lot of law books during his career. We know that he has been successful at every job he has ever attempted to accomplish. We know that he has spent his adult career inside the Beltway.

But who is he? I mean, any good lawyer can look up a statute or some case law and provide an opinion about some issue or another. And even the devil can quote scripture, or so we are told. One man’s opinion is ofttimes as good as that of another. Unless that person happens to sit on the U.S. Supreme Court, in which case at least some of his words can become law.

Every potential justice of the U.S. Supreme Court ought to be heard at his (or her, Justice Ginsburg) confirmation hearing. This is the one chance for the American people to take a look at the person, and get a feel for the nominee. The Senators should ask probing questions, and the nominee should answer them. In my book, it is OK to ask questions about current legal issues, although it runs the risk of getting sidetracked on purely political, ephemeral, hot-button matters. Let the answers steer the discussion. If the Senators like the answers, they should vote for the nominee. If they do not like the answers, they should not vote for the nominee. Done correctly, a Senate confirmation hearing can be A Chorus Line kind of moment.

Questions for John Roberts: Questions Senators Should Ask

I am sure that by now the Senators have their own lists of bar exam questions for the nominee. Still, over and above these types of questions, here are a few of my own inquiries to the nominee. If any of the Senators wants to take a break from the legalistic probing, I believe it might be useful to pose something like these. You never know where they might lead:

** Judge Roberts, you have had a very distinguished career, during which you have performed exceedingly well in all of your various jobs. What are one or two of the most difficult things you have ever had to accomplish in your life, and what did you learn from having to work your way through those difficult tasks?

** Judge Roberts, what, in your opinion, are the three finest moments of American history during your adult life, starting from the late 1960s to the present time?

** Judge Roberts, what, in your opinion, are the three worst moments of American history during your adult life, starting from the late 1960s to the present time?

** Judge Roberts, what foreign countries have you visited in the past 10 years, and in general what did you learn, or what impressions did you form, during your travels to these places?

** Judge Roberts, what are your thoughts on the rise of China as an economic, political, and military power during the past decade, and in particular, what are your views of China as an economic competitor or rival with the United States in the world?

** Judge Roberts, your father worked for Bethlehem Steel Corp. and we have learned that you worked for a number of summers in an Indiana steel mill during your college years. What, in your opinion, led to the decline in heavy industry in the United States during the past 35 years, and what are the long-term implications of this decline to the nation?

** Judge Roberts, could you give us an example of what you believe are three major trends in American social, economic, or political affairs? Are these trends in the nature of national phenomena that are in the ascendancy, or do they reflect phenomena emblematic of some sort of decline?

** Judge Roberts, where were you on the morning of Sept. 11, 2001, and what first went through your mind as it dawned upon you that this nation was being systematically attacked?

** Judge Roberts, what, in your opinion, are the three worst decisions that have ever issued from the U.S. Supreme Court, from 1789 to the present time?

** Judge Roberts, what, in your opinion, are the three greatest novels in American literature?

To my mind, these types of open-ended questions are more difficult to answer than legal quiz questions about evidentiary rulings under the Daubert doctrine or the misuse of avoidable preference actions under the bankruptcy code.

Sure, I care what John Roberts thinks about the merits, if not the legal principles of the decisions at Wickard v. Filburn, versus the holding at National League of Cities v. Usury . And let him say what he thinks about the principles underlying Roe v. Wade . As the great legal theorist Julian Corbett once noted, judicial precedent is not necessarily the same thing as legal principle. I do not doubt that Judge Roberts knows that.

I am sure that John Roberts, Harvard ’76, Law ’79, can expound on the subject of law with complete erudition and brilliance. But I would also like him to explain to the American people what he thinks about this nation and its role in the world and where it is heading. Beyond the case law, I want him to tell the American people what he thinks about other important things.

Ours is a nation deep in debt, at every level of its economy. We live in a world of depleting resources. The United States faces a future with its industrial base dramatically reduced from what it was when John Roberts was in high school in Indiana in the early 1970s. The country is involved in an overseas war. By every indicator, the next 30 years of life in America are going to be one heck of a lot tougher than the last 30 years.

I do not expect any one man to fix all of the nation’s problems, but considering the job to which he aspires, does Judge Roberts have an opinion on any of these foregoing subjects? I would like to listen to him explain his views before he receives lifetime tenure as chief justice of the United States Supreme Court. If he does that, then I think that we will have the measure of the man.

Until we meet again…

Byron W. King
September 8, 2005