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Questioning Mr. Roberts

On Monday, amid little fanfare due to the continued bungling over the cleanup and recovery in the Gulf Coast, John Roberts' confirmation hearing to become the 17th chief justice of the Supreme Court began amidst considerable discussion of the nominee’s likely rulings on key political issues such as abortion, civil rights, and affirmative action. Roberts proved modest, polite and noncommittal on just about all of them.

While these issues continue to divide Americans, and will do so for quite a while, Judge Roberts is likely, if confirmed, to sit on the court for as many as three or more decades. Can we say that they actually reflect the realities that might confront Roberts’ court in 20 or 30 years? And as so many members of the Senate Judiciary Committee sleepwalk through the confirmation hearings for the nation’s 17th Supreme Court chief justice, much of mainstream media is playing right along, filing bloodless dispatches that serve as little more than transcripts of the proceedings. For instance, on Tuesday, the Seattle Post-Intelligencer, as one among many, blandly ran down the list of topics Roberts was forced to provide answers on for the committee. The topics the paper included consisted of women's rights, desegregation, judicial term limits and voting rights. In another bit of critical reporting, The New York Times on Wednesday broke the story that Roberts "agreed that the Supreme Court was right to outlaw public school segregation in Brown v. Board of Education and said there was new historical evidence to suggest that the framers of the 14th Amendment had envisioned just such a result." Again, while few of us look to the Judiciary Committee for vision, this can hardly be said to be the kind of substantive issue which will face our nation in the decades of a Roberts court.

Two weeks ago, the New York Times Magazine ran a piece by Jeffrey Rosen, a law professor at George Washington University, that looked at some of the issues that the Judiciary Committee and the media should be weighing in assessing Roberts' ability to lead the Court. Rosen calls our attention to this case’s obvious precedent: William Rehnquist's hearings for associate justice in 1971, and then when he was nominated for chief justice in 1986, when so much of the attention was lavished upon a memo he had written as a law clerk that seemed to question the legality of Brown v. Board of Education. As he points out in the Times, however, "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."

In much the same way, just as senators line up to ask Roberts about jokes he made about lawyers in the mid-‘80s and the “meaning of the phrase ‘The Reagan Revolution,’” what they should be focusing on are the 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."

It goes without saying that a Roberts court in the year 2020 or 2030 will be dealing with issues that we are only now beginning to see the contours of. While fuzzy, we still know that these issues exist. It doesn't take a crystal ball to realize that some of the sticky legal problems the Court is going to have to deal with in the coming decades include human cloning, parents' ability to choose their child's genetic makeup, or intellectual property rights in an age of digital entertainment and reproduction. Then there are combinations of the above, including copyright over genetic sequences or using public money to finance and regulate gene therapy. While politicians might not have the requisite imagination to anticipate these issues, the big thinkers in the media should. But no one seems to be catching on that the Roberts hearings are being fought in the past, and not the future. What's more, as the historian Gil Troy has recently written on Potus, the blog for presidential historians, "Too much of the coverage surrounding the John G. Roberts, Jr. Supreme Court nomination resembles the work of a graduate student who discovered a treasure trove of archival documents but failed a basic methodology course." In other words, as we've seen throughout this nomination process, reporters and Senate staffers frantically searching through the tens of thousands of documents for some inside track into how Roberts thinks often seem to merely latch on to some misleading or pointless tidbit that they think may illuminate his overall philosophy. Remember stories from a week or two ago that examined the copy edits Roberts made on his or a colleague’s briefings? While that may have passed for news, it told us nothing about the man, or his potential for effecting American law for decades to come. This is hardly what we need—or deserve—in weighing the potential for this man to shape American law and society for the coming three decades.

P.S. In re Katrina, I wrote a column in The Nation last week pointing to the welcome resurgence of reporting on race and class in the wake of Katrina. It appeared before I could point to this tremendous effort by Jon Alter of Newsweek.

Eric Alterman is a senior fellow at the Center for American Progress and the author of six books, including most recently, When Presidents Lie: A History of Official Deception and Its Consequences.