John Roberts: The Danger of Elusive Brilliance

By Dr. John W. Luton
Associate Professor ~ Mass Communication
Elizabeth City State University

Thursday, September 15, 2005

To conclude that Judge John Roberts possesses a brilliant legal mind would probably incite little disagreement. His intelligence – some would prefer the term brilliance -- is beyond question. Like Karl Rove, and other right-wing strategists of similar ilk, Roberts’ public performance before the Senate Judiciary Committee this week has demonstrated an abundance of brain power – both in his knowledge of relevant legal matters, as well as his skillful maneuvering around direct questions. And with an intensity of gaze, an unflappable demeanor and carefully crafted use of language, his performance may have enabled this nominee for chief justice of the United States to secure his intended position. Before the votes are tallied, however, maybe one more look at Roberts’ record would spark constituents to encourage their representatives to vote against his confirmation.

While intelligence and good articulation may be essential attributes for a position on the Supreme Court, other necessary qualities are perhaps just as important. And, in Judge Roberts’ case, these qualities are missing. The chief justice of the United States should possess an effective blend of legal expertise and concern for social justice. He or she must be a stalwart defender of individual rights of American citizens – someone who will be willing to preserve all our constitutional rights, especially those freedoms guaranteed by the First Amendment.

A complete scrutiny of Judge Roberts’ record is impossible, since many documents pertaining to his White House service during the Reagan administration have never been made available to Congress or the media. This denial of access, considered alone, should have proved an insurmountable obstacle to Roberts’ confirmation. Since the White House has prevailed in its refusal to provide access to these documents, a documentary analysis (though incomplete) must focus on texts and memos which are available for scrutiny.( I wonder what happened to the more than 100,000 Freedom of Information Act requests that were submitted for key documents.)

In light of the missing documents, Judge Roberts’ testimony could have provided answers to clear up any misgivings regarding his past service as well as actions he might take as chief justice. Instead, the judge skillfully used language to further cloak and obscure meaning. So, much that we derive from his testimony must be based on what he did not say.

At no place in Judge Roberts’ two and one-half days of testimony did he express passionate support for the First Amendment, that first article of the Bill of Rights that guarantees the freedoms of speech, press, religion and other vital personal liberties. In fact, when Sen. Patrick Leahy asked Roberts under what conditions the Supreme Court might justify a denial of media access, Roberts said, “Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply.”

Are we, as Americans, seriously considering the confirmation of a candidate who is “not terribly familiar” with the levels of scrutiny that apply in First Amendment cases? If Roberts is confirmed, we can expect one of two scenarios. In one, the Supreme Court will be presided over by a chief justice whose lack of experience in First Amendment access cases may need to rely on other sources and influences to reach decisions, rather than the doctrine of stare decisis, which follows legal precedent. A second scenario might present a chief justice who avoids acting on decisions he does not fully understand, especially those pertaining to the media and the First Amendment. Either way, the American people stand to lose precious ground.

Equally disconcerting is Judge Roberts’ lack of forthrightness when questioned about such issues as civil rights, abortion and the death penalty. In each instance, Roberts declined to address questions that might cause him to prejudge cases that could come before the Supreme Court. What a convenient way to skirt some of our country’s most important issues! Sen. Dianne Feinstein could only gasp at such responses, saying, “Many of us are struggling with exactly that: what kind of a justice would you be, John Roberts?" Sadly, Senator Feinstein’s question is as appropriately posed at the end of Judge Roberts’ testimony, as at the beginning.

While some are predicting Roberts’ certain confirmation, the American people are left with a nominee for chief justice of the United States, about whom we know very little. And what little is known about John Roberts – his alleged brilliance notwithstanding – provides cause for no small alarm.


John W. Luton, Ph.D.
Associate Professor ~ Mass Communication and Media Law
Elizabeth City State University
Elizabeth City, NC 27909