I'm hearing a lot of concern that Roberts could be lying through his hearings, saying what Senators want to hear to provoke them into confirming him. I wrote about this awhile back (it's possible), but have slightly revised my opinion. The first point, of course, is yes, he can do exactly that and there's nothing we can do to stop him. In that way, we're back at the old "elections matter" adage. When Republicans get elected, they're going to nominate judges. When we're in the minority, we can't block them all. If they want to lie during confirmation, they can. We're up a creek here. Nevertheless, there are some reasons for optimism. here are a few:
• Scalia, Thomas and others faced a Democratic Senate, giving them significantly more reason to lie. Roberts would do more to assure confirmation by appealing to the Republican majority rather than the Democratic minority. His moderation on Roe has got folks concerned over at Free Republic and is certainly doing the same through the Christian conservative community. They can cause more trouble for him than Ted Kennedy ever could.
• His answers have been fairly forthcoming. While he's not quite speaking in declarative sentences and offering ironclad assurances, he's doing quite a bit more than Clarence "I have never thought about, spoke about, or even heard of Roe" Thomas.
• He has pointedly disavowed originalism or any other straight ideological position of judicial issues. That doesn't mean he couldn't cobble together an ad hoc coalition of theories and justifications for extremist jurisprudence, but it does mean he's not offering the code words conservatives want. Again, there's little strategic purpose to doing that.
• His Democratic colleagues don't think he's a nutball. They know him better, have known him longer, and have interacted with him more than most everyone else. And while 20-some year old memos he's written are worrisome, these opinions, being two decades fresher, are proportionately comforting. In addition, liberal judicial theorists like Cass Sunstein and Lawrence Tribe all seem fairly comfortable with Roberts. Not their guy, maybe, but not a radical like Scalia or Thomas.
None of this promises Roberts won't wake up the day after confirmation, rip off his human costume, and reveal a firebreathing lizard man bent on crisping American jurisprudence. He could be lying now, he could've been fooling his friends, he could find Scalia incredibly persuasive on every point. But these things are out of our hands. Bush will nominate two Justices. Barring unprecedented turmoil, he will have them confirmed. The question is whether you think Roberts is so bad that a Democratic filibuster, if survived, will force Bush to nominate someone better. As things stand, the argument for evil Roberts seems to have relatively little to do with him personally and more to do with conservative precedent for nominating crazies. He's not the sort of Judge I'd pick, but the honest truth is, he seems better than the sort of Judge I though Bush would pick.
