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Slate's Jurisprudence: Roberts on the Hot Seat


This is DAY TO DAY. I'm Alex Chadwick.

Coming up, the line from New Orleans to Houston and why people in that Texas city have been so generous to the thousands fleeing Katrina.

First, this.

(Soundbite of hearings)

Judge JOHN ROBERTS (Supreme Court Nominee): Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind.

CHADWICK: That's Judge John Roberts, testifying today before the Senate Judiciary Committee in the hearings on his nomination to be chief justice of the United States. The hearings have now concluded; they'll resume tomorrow. I spoke earlier with Dahlia Lithwick. She's legal analyst for the online magazine Slate and for DAY TO DAY, and she's covering the proceedings.

Dahlia, welcome back and give us the sense of the topics and flash points the senators will be trying to probe this week.


I think mostly, Alex, you're going to sort of see the usual suspects. They're going to be trying to figure out where he stands on things like abortion, on affirmative action, on civil rights, on matters of church and state entanglement. I think also, you're going to see a real focus on the areas that are implicated in those memos he wrote in the 1980s when he was working for the Reagan Justice Department. Things that raised concerns for some of the senators included, again, matters of civil rights, gender discrimination and the scope of the court's power to remedy such wrongs. And finally, I think you're going to see a real focus on his recent writings on the Appeals Court of the DC Circuit, things that he's written that may raise some red flags in terms of his notion of the reach of congressional power and, maybe more importantly, the reach of executive power during wartime.

CHADWICK: One of the key things that I read about in stories leading up to these hearings is the idea of stare decisis. I'm not even sure I'm pronouncing this correctly, not being a lawyer or a legal scholar. I'm asking you to explain this for us.

LITHWICK: You're pronouncing it beautifully, Alex, and narrowly, stare decisis simply means you don't go around upsetting prior court rulings willy-nilly. You have to give a sort of deference and respect to prior courts, even if you think they've decided things wrongly. More broadly, stare decisis sort of stands for the notion of stability from court to court and from justice to justice. And so more important even than John Roberts' personal views on matters like abortion or affirmative action, the senators are going to try to probe his feelings about whether precedent means something or whether it can be lightly disturbed. It's worth thinking about someone like Justice Clarence Thomas, who allegedly doesn't believe in stare decisis at all, and who thinks it's the job of the court to go back and fix all the badly decided prior cases. Contrast that to some of the very conservative jurists on the court who, for instance, don't believe in affirmative action but won't overturn Roe v. Wade because of stare decisis, so this--more important even than his ideology is what he thinks about upsetting old precedents.

CHADWICK: Dahlia, isn't it the general consensus that these hearings, hearings like this, don't generally unearth a lot of new information? So why is that and is there any chance that senators will be able to surprise us?

LITHWICK: I think that the sort of cynical answer, that this is an opportunity for a lot of chest-thumping for senators for the folks back home. More and more nominees say absolutely nothing of value at these hearings. They take cover under this notion that you don't want to prejudge a matter that might come before you when you're a justice, and so any question of any substantive law, they say, `Oh, that may come before me.' And so that's been the sort of Kabuki of it. I don't think that the senators are going to really surprise him. John Roberts is notorious for being perfectly prepared for everything he does. You will see them asking sort of broad ideological questions rather than specific ones. Look for words like `privacy' as a code for abortion or `Commerce Clause' as a code for congressional power.

CHADWICK: Aha. The code words. All right, good. Thank you for that tip. How about a sense of how the confirmation is going to go overall?

LITHWICK: I think I join most of my colleagues in saying there is going to be no "Perry Mason" `aha' moment in this confirmation. Like I say, Roberts is just far, far, far too meticulous and well-prepared. And I think the Democrats really are sort of holding their fire. They know he's going to be confirmed, and they want to sort of apportion their outrage between Roberts and the yet to be named next candidate for Justice Sandra Day O'Connor's seat. So I think in doing so, they're going to hold back a little bit.

CHADWICK: Opinion and analysis from Dahlia Lithwick, legal analyst for the online magazine Slate, regular guest here on DAY TO DAY, covering the confirmation hearings for Judge John Roberts all this week at the Senate Judiciary Committee.

Dahlia, thank you.

LITHWICK: My pleasure, Alex.

CHADWICK: I'm Alex Chadwick. More coming up on DAY TO DAY from NPR News. Transcript provided by NPR, Copyright NPR.

Alex Chadwick
For more than 30 years, Alex Chadwick has been bringing the world to NPR listeners as an NPR News producer, program host and currently senior correspondent. He's reported from every continent except Antarctica.