Why Not Roberts?

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Via Shakespeare’s Sister, it looks like Pat Leahy, the ranking Democrat on the Senate Judiciary Committee, will vote to confirm John Roberts. Says Leahy: “All of us will vote this month but only later will we know if Judge Roberts proves to be the kind of chief justice he says he would be, if he truly will be his own man.” What?

This gets at the heart of what’s wrong with Leahy’s whole stance. All through the hearings, it was pretty clear that Roberts answered precisely zero questions about his stances on just about anything. He refused to comment on past case, or future cases, or hypothetical cases, or even the ideas inherent in the cases themselves. It was, as many have pointed out, a farce. The thing is, there’s no reason it has to be this way. As Emily Bazelon pointed out in Slate, Roberts should have answered the damn questions: “Nothing in any legal code or judicial canon of ethics supports the broad stance against answering questions.”

Now granted, Ruth Bader Ginsburg, a Clinton nominee, also was very fond of taking the “Judicial Fifth” during her confirmation hearings, but the only thing to be said about that is that she was wrong to do so. Letting Roberts’ evasiveness pass sets a terrible standard for the future. I would imagine—although who knows for sure—that the White House has gleaned a relatively clear picture of Roberts’ views during its interviews with him. The public, along with the Senate, has not. Ted Kennedy has said he didn’t know enough about Roberts to confirm him: “At the end of the four days of hearings, we still know very little more than we knew when we started.” I doubt Kennedy would vote to confirm no matter what. Nevertheless, that, and not Leahy’s position, is exactly the right precedent to try and uphold.

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