Too Much of a Mystery - New York Times

Too Much of a Mystery - New York TimesSeptember 18, 2005
Too Much of a Mystery

John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week. But in many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach. That makes it difficult to decide whether he should be confirmed. Weighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval. But the unknowns about Mr. Roberts's views remain troubling, especially since he is being nominated not merely to the Supreme Court, but to be chief justice. That position is too important to entrust to an enigma, which is what Mr. Roberts remains.

Few lawyers in America can compete with Mr. Roberts in professional accomplishments. After getting college and law degrees at Harvard, he clerked for Justice William Rehnquist on the Supreme Court, and then became a top lawyer in the Reagan administration, deputy solicitor general in the first Bush administration, and partner in a prestigious law firm. He has served two years on the United States Court of Appeals for the District of Columbia Circuit.

If the test were legal skill alone, Mr. Roberts would certainly pass. But the Senate and the American people have a right to know whether he would use his abilities to defend core rights and liberties, or to narrow them. There may be a debate on Capitol Hill on this point, but popular opinion is clear. In a New York Times/CBS News poll, 46 percent said it was "very important" for senators to know Mr. Roberts's "position on issues such as abortion and affirmative action." Another 31 percent said it was "somewhat important." Only 13 percent said it was not important at all.

It has been difficult for senators to extricate his views. During his brief term as a judge, he has written few notable opinions. The White House has refused to release the memorandums he wrote in the solicitor general's office, which could have been revealing. Memos from earlier in his career raise red flags on issues like civil rights, women's rights and the right to privacy - which he dismissed, at one point, as the "so-called 'right to privacy.' " When confronted with this record, he often gave the impression of having moderated his views, but stopped well short. More recently, as a judge, in a case involving the Endangered Species Act, he threw doubt on Congress's power to protect the environment in important ways. In another case, he upheld the arrest of a 12-year-old girl in the Washington subway for eating a single French fry.

Given these concerns about his record, Mr. Roberts needed to use the hearings to reassure the American people in a substantive way that he would be a vigilant guardian of their rights. He did sound some positive notes. He promised that he would not be an ideologue on the court, and that he hoped to build greater consensus. He supported Griswold v. Connecticut, the 1965 case holding that married people have a right to buy and use contraception, though he was unwilling to commit to a right to privacy that includes much more.

Over days of testimony, he dodged and weaved around many other critical legal issues. On abortion, church-state separation, gay rights and the right of illegal immigrants' children to attend public school - all currently recognized by the court - he asks to be accepted on faith. That just isn't good enough. The Constitution says that senators must give their "advice and consent" to Supreme Court nominees. To do that in a meaningful way in the case of Mr. Roberts, they need information that has been withheld from them.

If he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice. But it is a risk. We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.