Plato and Judge Roberts II
Bill Long 9/15/05
Listening to Senator Feinstein
Two of the realities of the confirmation hearing that seemed to dawn on senior Democratic senators as they went on were that Judge Roberts was uncommonly brilliant and, on the other hand, was unusually young for such a position. Indeed, I think he has a wonderfully analytical, and what the nineteenth century would call, retentive mind, and he also has written some of the best legal briefs I have ever read. I do not believe, however, that he has a creative or generative mind or a highly developed critical mind. He is also very young (50) and thus is a almost a generation younger than some of the members of the committee. This possible anomaly, of a man who was so well-versed in law but who seemingly had done little reflection on life experience, lay at the heart of the following exchange with Senator Feinstein.
Senator Dianne Feinstein's Observations/Questions
She said: "But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time. And because of the division -- and there's also a lot of fear out there -- where this new court, now with potentially two new justices, is going to go, whether you've got the ability to bring that court together, to end the 5-4 decisions, to see that big decisions are made so that they represent a much greater consensus."
MY COMMENT: Roberts is, by my reckoning, the 3rd youngest Chief Justice in our nation's history. Only the first Chief Justice, John Jay (44) and the greatest Chief Justice, John Marshall (46) were younger when they became CJ. We have not had a CJ younger than 60 in almost 60 years, and that CJ, Fred Vinson, is usually accepted as one of the worst we have ever had. But youth will not disqualify Roberts, even though he will need to "grow into" the job. What is interesting to me, however, is that students of institutional history tell us that it is very difficult for a successor to come in after a highly-successful and long-tenured predecessor. There is just too much "institutional drag" and loyalty to the person recently departed. Especially since Chief Justice Rehnquist died a mere two weeks ago, we might expect Judge Roberts, despite his obvious humility and willingness to learn, to face lots of seemingly invisible institutional hurdles which will make his job very difficult for quite some time.
Getting to the Issue--Roberts the Man
FEINSTEIN: And I'm trying to find out and see are those qualities really there. I was interested in a colloquy you had with Senator Biden on the end of life. And he used the word -- he asked a number of legal questions. And then he says, OK, just talk to me as a father and tell me. Now, I have been through two end of life situations, one with my husband and one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation.
MY BRIEF COMMENT: It would have been very dangerous for Roberts to have "bitten" on Senator Biden's invitation to talk "man to man." Biden, who greeted Judge Roberts with the words, "Hey, Judge," is a wily, slippery and cagey politician. Not many would want to mud-wrestle or even "share" with him. But, Senator Feinstein is bringing up a very good issue. She asks, 'can you relate to wrenching issues of personal loss as a man and not as a judge?' Why is this relevant? Well, for one thing, Senator DeWine's words had made them relevant. The Committee is not recommending an automaton (to use Justice Frankfurter's word, which Feinstein would pick up after she was disappointed with Roberts' answers) but a human. Listen to the fascinating way that the speakers now "miss" each other in conversation on this important issue of the "humanity" of Judge Roberts.
Senator Feinstein's Question
FEINSTEIN: Let me ask you this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do? To me, it's that stark because I've been through it.
ROBERTS: Well, Senator, in that situation, obviously, you want to talk and take into account the views and heartfelt concerns of the loved one that you're trying to help in that situation, because you know how they are viewing this. You know what they mean when they're saying things like what their wishes are and their concerns are and, of course, consulting with their physician. But it seems to me that in that situation, you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it because...
FEINSTEIN: That wasn't my question.
[MY COMMENT: Roberts is not very skillful here at picking up on the Senator's language and "heart." She has lost two people with whom she was intimately connected to terrible diseases--and the Judge seemed to be on "auto-response."]
ROBERTS: I'm sorry.
FEINSTEIN: I'm trying to see your feelings as a man. I'm not asking you for a legal view.
[MY COMMENT: She hears the Judge's generic words as coming from a lawyer and not a husband, father, son--a human.]
ROBERTS: I wasn't trying to give a legal view. My point was that, obviously, you look to the views of the person involved. And if it's a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.
FEINSTEIN: How would you feel if you were in that position?
ROBERTS: An end of life situation? You know, I do think it's one of those things that it's hard to conceptualize until you're there. [MY COMMENT: Has he been there? Does it matter?] I really would be hesitant to say this is what I would definitely want done or that's what I would definitely want done. You do need to confront that and appreciate all of the different concerns and impulses and considerations.
FEINSTEIN: And every situation is different.
ROBERTS: Yes. And it's one of those things I think is difficult to put yourself in that position and say, "Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do."
ROBERTS: You can theorize it and try to come up with your views or how you would confront...
FEINSTEIN: That's right. All I'm saying is you wouldn't want the government telling you what to do.
ROBERTS: Well, I'm happy to say that as a general matter.
FEINSTEIN: That there should be a basic right of privacy.
ROBERTS: Well, that's getting into a legal question.
[MY COMMENT: Senator Feinstein was looking for a "human" and what she felt she got was a rather impersonal response. She is one of the few on the committee who is not a lawyer. One of the realities of being an appellate attorney, and Roberts has been for two decades, is that you almost never meet real clients. You frequently deal with the lawyers who argued the case "below." Does John Roberts know how to feel with real people and reflect on his feelings? This part of his persona is probably least developed. Does it disqualify him from being CJ? No. Does it affect his judging? You betcha.]
Now, what would Plato say about all this? The next essay probes this question.
Copyright © 2004-2007 William R. Long