Roberts Day 1: Play Ball? Commentary
Roberts Day 1: Play Ball?
Edited by: Jeremiah Lee

In a JURIST Forum special, JURIST Contributing Editor William G. Ross, Professor of Law at Samford University's Cumberland School of Law in Alabama, reviews the first day of the Senate confirmation hearings for Supreme Court Chief Justice nominee John Roberts, and wonders about the baseball metaphor chosen by the nominee to describe his judicial role…

The first day of the Senate Judiciary Committee hearings on the nomination of John G. Roberts, Jr. to become Chief Justice of the United States was consistent with the moderate tension evidenced over his confirmation during the eight weeks since President Bush first nominated Roberts for an associate justiceship. Although the hearings lacked the rancor that from the very beginning beset the hearings on Robert Bork in 1987 and the hearings on Clarence Thomas in 1991, Senate Democrats were less deferential to Roberts than Republicans were toward Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. The wariness of Judiciary Committee Democrats toward Roberts was reminiscent of their initial attitude toward David Souter in 1990. Several Democratic senators warned Roberts that they would not vote for his confirmation unless he provided satisfactory answers to questions about his views on a wide array of controversial legal issues, particularly federalism. As Senator Russell Feingold declared, the confirmation process “is not a coronation.”

More than perhaps any confirmation hearing on history, Monday’s hearing focused on process. Although Senate Democrats assured Roberts that they do not expect him to compromise the Court’s integrity and independence by explaining how he would vote on specific issues that are likely to come before the Court, they expect him to discuss previously decided cases and to provide considerable detail in his responses to questions that are designed to probe his political predilections. Meanwhile, Senate Republicans reminded Roberts that he is not obliged to answer any question and should not make any response with which he is not comfortable. “Don’t take the bait,” Senator John Cornyn urged Roberts. Republican senators likewise urged their Democratic colleagues to refrain from asking questions that sought commitments on specific legal issues.

Monday’s hearings also provided examples of how the confirmation process provides an opportunity for senators to impart information and advice to nominees in addition to asking questions. As Senator DeWine remarked, “This is a time for a national conversation” about the Constitution. Senator Feinstein, for example, reminded Roberts of the long struggle of women for gender equality. Warning him that she would be very reluctant to vote for any nominee whom she “knew would overturn Roe v. Wade,” Feinstein recalled how her Stanford classmates had collected money to enable a woman to obtain an abortion and how she had known a woman who had killed herself because she was pregnant. Meanwhile, Senator Brownback reminded Roberts that nearly forty million abortions have been performed since Roe and he expressed regret over “forty million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life.”

Senators also reminded Roberts of the importance of judicial restraint and judicial compassion. In confirmation hearings, Republicans traditionally emphasize the need for judicial “humility,” a code word for judicial restraint, while Democrats stress the importance of “heart,” a reference to empathy and compassion for the nation’s dispossessed. In his brief remarks to the committee, Roberts twice assured the senators that he understands the importance of “humility,” a word he used several times in his written responses to the Senate’s questionnaire several weeks ago. Roberts said nothing, however, about “heart.” Like the conservative that he is, Roberts emphasized the importance of liberty rather than equality or compassion. The Court, Roberts explained, should “safeguard those liberties that make this land one of endless possibilities for all Americans.”

In emphasizing that the need for judicial restraint, Roberts analogized the Court’s role to that of a baseball umpire. “Judges are like umpires,” Roberts declared. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

Roberts’s baseball imagery minimizes the political significance of the Court, which is much more than an umpire. Although Roberts may have been correct in averring that the Court merely “calls balls and strikes” and does not “pitch or bat,” the way in which the Court calls balls and strikes involves considerably more discretion than that of a baseball umpire. As Chief Justice Charles Evans Hughes once famously remarked, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.” Roberts’s contention that “nobody ever went to a ball game to see the umpire” is belied by the intense interest taken that countless Americans take in his own confirmation hearings and the work of the Supreme Court.

Since most Americans recognize that even the most “restrained” judges are influenced by their political predilections, Democratic senators are demanding that Roberts demonstrate that his constitutional values are not significantly at odds with their own. Although Democratic senators are willing to acquiesce to the appointment of a “conservative” Justice since they are only too well aware that Bush would nominate no other kind, they want to test the boundaries of Roberts’s conservatism. As Senator Charles Schumer told Roberts at yesterday’s hearing, “the pivotal question which will determine my vote is this: Are you within the mainstream — albeit the conservative mainstream — or are you an ideologue who will seek to use the Court to impose your views upon us, past and present, on the left on the right, have attempted to do?”

Monday’s hearings indicate that the committee will focus its inquiry mostly on ideology since no senator appears to doubt that Roberts has the intellectual ability and the integrity to serve on the Court. Although Roberts has little administrative experience, there is no indication that senators will seriously question Roberts’s ability to serve with effectiveness as the chief administrator of the vast federal judicial system.

As several senators indicated at Monday’s hearing, the principal question is likely to be whether the youthful Roberts has the capacity to adapt his thinking to the exigencies of particular cases as he encounters myriad legal issues, many presently unforeseen, during what is likely to be a very long tenure. In his remarks yesterday, Roberts assured Judiciary Committee members that he has an “open mind.” His testimony during the coming days will determine whether he is able to convince wary Democratic senators that his mind is indeed open. If he succeeds, a relatively quick confirmation seems assured. If not, his confirmation proceedings could become much more tumultuous.

Also by William G. Ross:

William G. Ross, a JURIST contributing editor, is professor of law at the Cumberland School of Law at Samford University in Birmingham, Alabama. His publications include several law review articles about the appointment of federal judges. His website is

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