Generals are forever fighting the last war, the saying goes. Well, Senators sitting on the Judiciary Committee, grilling potential justices for the Supreme Court, are apparently always fighting yesterday’s judicial battles.
John Roberts’ confirmation hearing to become the 17th chief justice of the Supreme Court begins today, and it’s already pretty clear, from the statements of senators who will be putting him under the microscope, that much of the questioning will center around certain predictable subjects: abortion, civil rights, affirmative action.
No doubt these are important issues. But do they really reflect the reality that might confront Roberts as chief justice for what might be the next 20 or 30 years or longer?
It’s one thing for senators not to be able to see beyond the conceptual framework that has defined their time in public life. (Teddy Kennedy has spent forty years on the panel and took part in eighteen confirmation hearings. What can you expect?) But the media has a job to try at least to peer into the near-future and put some of these unanticipated questions on the table.
Two weeks ago, The New York Times Magazine, in an article by Jeffrey Rosen, a law professor at George Washington University and legal affairs editor at The New Republic, tried to do just that.
Rosen reminds us first that during William Rehnquist’s hearings, as associate justice in 1971 and then chief justice in 1986, much of the attention was paid to a memo he had written as a law clerk that, as Rosen put it, “seemed to question the soundness of Brown v. Board of Education.” But, Rosen continues, “expending so much of their energy on the issue of segregation, the senators asked little, in the end, about the issue that would come to define the Rehnquist court — the relationship between the federal and state governments.”
What we should be focusing on with Roberts, Rosen says, are the “Brave New World of constitutional disputes” that lie ahead. He explains that, “as Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression.”
In other words, a Roberts in the year 2010 or 2020 or 2030 will be dealing with issues that we are only beginning to wrap our minds around. Issues such as the limits of cloning, or to what degree parents should be allowed to determine their babies’ genetic makeup. Or how about intellectual property rights; what becomes of them when digital entertainment becomes prominent? What about copyright over genetic sequences? Or who should finance and regulate gene therapy — and what sort of controversial drugs might arise that will have to be either legalized or outlawed?
Politicians might not have the imagination to anticipate these issues, but the media should. Yet Rosen’s piece is rare. Most of the buildup to the confirmation hearings — that which hasn’t been drowned by hurricane coverage — has focused, first and foremost, on the politics of the event. How far will the Democrats push? How will senators with presidential ambitions position themselves with the questions they ask? And will the Republicans feel they got a justice with conservative enough bona fides? This is horse-race journalism at its most trite, transplanted from its usual home, election campaigns, to a confirmation hearing.
There has been little of substance, besides the predictable focus on the future of Roe v. Wade. Even The New York Times’ standard op-ed page today, full of potential questions from guest contributors, felt redundant and uninspired, with most writers demanding to know Roberts favorite past justices and decisions.
As Howard Kurtz noted today in his column, Roberts has been, for a variety of reasons, sliding past any real press scrutiny. According to a study by the Center for Media and Public Affairs, in the first forty days after his nomination, 69 percent of references to him on the network evening newscasts were positive. Even in that bastion of liberalism, the New York Times, references to Roberts were positive 57 percent of the time. By those measures, he’s a Teflon nominee, unlike, say, either Robert Bork or Clarence Thomas.
Katrina, of course, hasn’t helped, as Kurtz also notes, and a continued focus on the disaster in New Orleans seems likely to divert scrutiny from both Roberts and the hearings.