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Spokane, Washington  Est. May 19, 1883
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Opinion

Branches of government on display

Chuck Raasch Gannett News Service

There should be no mystery over what the “G” in chief justice nominee John G. Roberts stands for. “Guarded.”

As in “cautious and prudent” – seemingly the nominee’s favorite words. In a city that’s pushed slash-and-burn politics to new frontiers, Roberts’ hearings before the Judiciary Committee have been revealing, showing how nuance, code words and parrying still can dominate and frustrate. Have they been useful? We’ll take the Roberts road here: Yes and no.

Yes, because this committee, which may have done more than anything to spark the culture wars of the 1990s with its sensational and X-rated hearings of Justice Clarence Thomas, provided a civics lesson in how the two different branches of government check each other. The hothouse legislative atmosphere of Congress, as represented by senators who could barely sit in their seats, squared off against the cool and dispassionate judge, representing the judicial branch. If there ever was a human metaphor for the brilliance of the checks and balances in the Constitution, it played out this past week.

No, in the sense that after nearly a week of intense verbal skirmishing, we do not know much more about this judge’s views on issues that affect every American. And what we do know, we found out largely by reading between the lines.

Over four days of back-and-forth with senators, “the right to privacy” became code for the deeply personal, perennially public debate over abortion. While Roberts agreed that the major court decisions that permit but restrict abortion were strong precedents, he gave no firm indication of how he’d rule in the future. And that’s the kind of judicial restraint and objectivity that the Constitution demands, he said.

Roberts so often deflected senators’ questions about issues that might come before the court that by the end of four days, some Democrats were finishing his answers for him. Sen. Dianne Feinstein, D-Calif., who often came across as the fairest and most diplomatic on her side, asked with resignation whether a woman had a right to terminate her own pregnancy.

When Roberts started to deflect the question by saying that “that is an area …” Feinstein quickly interjected, “apt to come before you.” And the matter died.

Some Democratic senators – especially Joe Biden of Delaware and Edward Kennedy of Massachusetts – so dominated their allotted question time with their own thoughts or lengthy prefaces they left little time for Roberts to respond. Given the nominee’s strategy going in – portraying himself as a man of character, with a stout belief that judges should be referees, not players – the Democrats’ verbosity played directly into his hand.

As President Bush’s choice to replace the late Chief Justice William Rehnquist heads toward what appears to be an inevitable confirmation, not much more has been learned about the nominee than the people questioning him. But Roberts’ Senate Judiciary Committee hearings that played out over the past week did provide a fascinating, and often revelatory view of the wide differences that remain between the left and right in American politics.

Liberals, sometimes weary, sometimes indignant, kept returning to the civil rights battles of the 1960s. They were largely frustrated by a nominee who, citing the need for judicial independence and fairness, danced around questions that spanned the beginning of life to the end.

Conservatives, fully aware that this is a warm-up for what could be a far tougher fight over Sandra Day O’Connor’s replacement, invoked the need for judicial restraint so many times it sounded like talking points. Some Republicans sounded like they were conducting a pre-game coaching session for their new Supreme Court quarterback.

Sen. Sam Brownback, R-Kan., cautioned Roberts that he may confront a liberal assault on traditional marriage if he sits on the court. Brownback warned of a “firestorm” if traditionally defined marriage “is picked up and stomped on” by federal judges.

Indeed, judicial firestorms are ahead. The new court has a right-to-die case waiting when it opens in October. In the midst of the hearings, word came in that a federal judge in San Francisco had ruled that reciting the Pledge of Allegiance in schools was unconstitutional because of its “under God” language. These hearings were the calm before that storm.

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