Judge John Roberts, Hollow Man?
September 17, 2005
(On Sept. 29, 2005, Senator Olympia Snowe voted to confirm Judge John Roberts as Chief Justice of the Supreme Court - vote #245)

I rearranged my work schedule last week to watch as much as I could of the Supreme Court confirmation hearing of Judge John Roberts. And as the week progressed, I became more and more uncomfortable with the idea of putting this man in charge of the United States Supreme Court.

Yes, he appears to be extremely intelligent. He knows the law well, and he is able to process information and come up with relevant legal information with apparent ease. But the overriding sense I came away with is of a man who looks at the law and the Constitution as an intellectual challenge - as an overblown chess game if you will. Strikingly, I found very little humanity in his responses to critical points.

The Democratic Senators on the Judiciary Committee kept trying to find out what core values Judge Roberts held. Troubling to me was his repeated insistence that his own values were irrelevant, that he would, and has, set aside his own values, unexpressed as they were in the hearing, when judging a case. I cannot imagine anyone being able to do that, nor do I think that ability is desirable in any judge, let alone the highest judge in the land. From where I sit, if Judge Roberts really thinks he can do that, that he can park his values over to the side when deciding a case, then he must not have any down-to-the-bone values. His description was that of a hollow man, one able to adopt the verbiage of the law books of the land as he would put on a suit, but who does not really grasp the law's humanity or essence. And that prospect, if true, portends frightening consequences for the United States of America during what could well be three decades of his court leadership.

I was also troubled by his dismissive remarks about repeated appeals to the Supreme Court in death penalty cases. He had no patience for people who wanted to postpone their own government-induced deaths, or to have their convictions overturned - even in those situations where new, unevaluated evidence might well prove exculpatory. If they had used up their allotted appeals, the process must go forward. From my perspective, he seemed to be saying that procedure was more important than justice. Again, troubling in any judge, but totally unacceptable in a Chief Justice of the United States Supreme Court.

And I was not the only one who was startled to learn that while Judge Roberts recognized the right of Congress to declare war, which is written into the U. S. Constitution, he was not willing to grant that Congress therefore had the right to end a war it had declared, when the Executive branch of government was not willing to do so. Roberts said the only thing Congress could do to end hostilities in that situation would be through the power of the purse - stop funding the war and the war would stop. It was Sen. Patrick Leahy of Vermont who pointed out that Congress had tried that in the early 1980s with the Boland amendment, but "the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran," Leahy said, "to continue the Contra war in Central America through other means."

The sparring over the several days of testimony was convoluted, excruciatingly detailed, and at the same time woefully un-elucidating. The process was also hindered greatly by the fact that the Bush administration has refused to release relevant documents from the time Judge Roberts was in governmental policy-making positions. Clearly the administration does not want the Senators to know what those documents would reveal about this Bush nominee.

Also of particular concern to me were the reports of a court decision made by Judge Roberts just a few months ago, when he and other judges on the District of Columbia federal appeals court upheld President Bush's creation of special military tribunals for trials of alleged terrorists and denied them the protection of the Geneva Convention. Other people have criticized Judge Roberts for his failure to recuse himself in that case, since he was then in the midst of interviews with key administration officials as a potential Supreme Court nominee. While that refusal to recuse himself is serious in and of itself, Judge Roberts' approval of the Bush administration's treatment of detainees, putting them outside the protection of international law, is to my mind unconscionable.

If I were a Senator in this Congress, I would be compelled to vote against Judge Roberts' confirmation as Chief Justice of the United States Supreme Court. That's because I, for one, cannot set aside my core values in judging this man's suitability for this historical and potentially world-altering position. And those core values of mine scream out to me that we are in for some breathtaking and heart-breaking court decisions once Judge Roberts is confirmed, as it appears he will be.
Comments BEFORE the confirmation hearings:

I am very concerned about many of Judge Roberts' legal positions, advisory comments, and judicial rulings over the past 25 years, particularly as they pertain to women. He appears to be a man who does not recognize a "right to privacy" in the U.S. Constitution, a right which is the basis for the Roe v. Wade Supreme Court ruling. His comments about comparable worth and wage discrimination ("From each according to his abilities, to each according to their gender") trivializes a serious and financially debilitating situation for many women.

Further, his involvement in the 2000 Presidential election recount in Florida, and several of his judicial decisions (including recently when a three-judge panel that included Roberts ruled unanimously that any rights accorded by the Geneva Convention to prisoners of war did not apply to suspected al-Qaida members or so-called enemy combatants) raise questions about the direction he will take our highest court. Sen. Patrick Leahy (D-VT), in a statement characterized Roberts' views as "among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy and access to justice."

Unless his confirmation hearing in September reveals reasons to change my mine, if I were a U.S. Senator, I would vote against this Supreme Court nominee.