Roberts Nonlessons
by George W. Liebmann

The conclusion of the Roberts hearings turned into an unusual Senatorial love feast. The assembled solons congratulated one another on the maintenance of relative civility. Unlike the Bork hearings. the proceedings did not begin with diatribes and demonization; unlike the Thomas hearings, they did not provide a forum for sexual defamation. But, when close attention is paid, it will be seen that the Senators again disgraced themselves.

The hearings constituted an effort to extract ‘campaign promises’ from nominees who should be judged on their previous public records. Once again, the almost total focus of the hearing was on abortion and ‘privacy’, defined as meaning only sexual privacy; on unenumerated ‘rights’, not those set out in the Constitution; on ephemeral issues, not the structure of government. When Judge Bork departed the witness stand after his five-day ordeal, the Senators had not inquired at all into his views on such unimportant subjects as the substantive criminal law, criminal procedure, federal criminal jurisdiction, or criminal sentencing. Except for some appropriate questions by Sen. Specter on the first amendment and by Sen. Metzenbaum on the antitrust laws, Judge Bork’s views on executive power, the bill of rights, and the separation of powers remained veiled in mystery. In the case of Judge Thomas, inquiry focused on allegations of sexual harassment that would have been time-barred in any court, given the appropriately short statutes of limitation surrounding verbal torts and minor assaults

The Senators at the Roberts hearings revealed that they had learned nothing and forgotten nothing. Sen. Feinstein proclaimed that ‘abortion rights’ were ‘fundamental’ rights, notwithstanding that numerous countries, recognizable as free democracies, severely or moderately restrict them. Senators Brownback and Coburn wanted to know the nominee’s personal view as to when life begins, as though the powers of legislatures were limited to the protection of human life, and as though the personal views of nominees appropriately drove their judicial decisions. Others turned the air blue with enconiums on non-marital ‘privacy’; of the ‘privacy’ with which the Fourth Amendment is concerned, nothing was said, even though the Court in recent years has effectively imposed a state of siege on private homes: police dogs may sniff at their doorsteps and property in privately owned common areas may be searched without reference to probable cause.

Nor was much said about recent claims to ‘emergency powers’. Save for Sen. Leahy, it is unclear if any of the Senators share Justice Jackson’s view that "with all its defects, delays, and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by parliamentary deliberations." The nominee’s views about the current vogue for sentencing by automatic machine went unprobed; renounced here was Attorney General Edward Levi’s view that "in a modern criminal trial, the defendant is entitled to be the central figure" and the correlative view that trial by jury includes the right to the judgment of a conscientious judge.

Ironically, the only interest shown in the structure of government was expended in futile attempts to get the witness to pledge allegiance to the view that the legislative powers of Congress vis-a-vis the states are unlimited. The nominee, a former clerk to William Rehnquist and Henry Friendly appeared infected with the views that Rehnquist inherited from Jackson and Friendly from Justice Brandeis. Jackson declared to the Columbia Oral History Project: "we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties...the potentialities of a federal centralized police system for ultimate subversion of our system of free government is very great." No Senator seemed troubled by the convergence of the ‘war on terror’ and the ‘drug war’, although the Constitution’s framers, in its military and militia clauses and bill of rights sought to guard against the national criminal law enforcement they knew: the dictatorship of the Earl of Stafford based on a standing army controllable by no one.

Finally, the Senators radiated complacency about the present state of the political system. The Court’s indulgence toward, and meddling with, Congressional regulation of campaign finance has increasingly produced a Senate of millionaires in empty, if well-tailored, suits, while the Court’s disrespect for local boundaries in reapportionment has given us a House of Representatives most of whose members hold office for life.

Sixty years ago, the late Charles Mc Ilwain declared that "the two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed." Public appreciation of these values is not fostered when Senators focus on license, not liberty.

The writer, a Baltimore lawyer and revently Visiting Fellow at Wolfson College, Cambridge is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005), and other works.

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