Stones Cry Out

In his nomination of John G. Roberts for the Supreme Court, President George W. Bush has put forward a highly regarded lawyer who is reportedly a quite likable individual. Roberts' supporters and independent analysts cite a lifetime of achievement as the reason he should be confirmed.

Roberts worked in both President Ronald Reagan's and the first President George Bush's administrations before going into private practice. Republicans are counting on the fact that Democrats will have a hard time voting against someone with government and private practice experience who is widely recognized within the Beltway as one of the country's top appellate attorneys. As Peter Canellos of the Boston Globe wrote, Roberts' career reads like "a 1950s Boys' Life primer on how to prepare for the Supreme Court."

But was John Roberts chosen because he's the best choice for the court or because he may easily be confirmed? And why not choose a woman to replace retiring Justice Sandra Day O'Connor, the first woman on the Supreme Court? Or use this as an opportunity to nominate the first Latino to the court?

We don't know what the decision-making process was, but Ms. Hill seems to suggest that national origin or gender should trump experience and ability. This is much like Point A's issue litmus tests or Point B's bygone bad behavior being overriding concerns vs. job performance. But I think there's larger reason Roberts may have been nominated, and I'll get to that next.

Not surprisingly, the answer to these questions has to do with the politics of confirmability. One thing is certain: If nominees are selected based on the very narrow and elite credentials that brought us John Roberts, a wide range of equally qualified, more diverse candidates will never even be considered.

Here's the crux of the matter; the "politics of confirmability". The irony here is that Anita Hill is decrying the very thing she participated in. Why does George W. Bush have to nominate someone who's "confirmable"? Because the Democrats brought the "politics of confirmability" to us in Points A & B above. And while one might be tempted to paint both parties with an overly broad brush and say they all do it, please refer to Point C.

Ms. Hill goes on to complain about the groups that Roberts belonged to and the gender makeup of the Rehnquist clerks he was a part of. She's worried that those he's associated with weren't diverse enough. She speaks very little about his qualifications, and indeed says she she hopes the Judiciary Committee will determine if he indeed does have the right experience. She doesn't know for sure, but she's more worried about his background in diversity, as though judging constitutional questions is based on who you've known. I don't recall the being a criteria for the Supreme Court. What concerns Ms. Hill further is that if Roberts' background becomes the standard by which Presidents have to choose their nominees, we'll never get another Sandra Day O'Connor, or perhaps a future woman or Latino that doesn't fit the picture. Whether or not that is the case, I'll note again that it is Democrats and Ms. Hill who set this standard of "confirmability". See Points A and B. Again.

With O'Connor on the bench, the Supreme Court was the most diverse in its history. If confirmability through the Roberts "primer" becomes the rule, it is not hard to imagine a return to an all-white-male Supreme Court.

Again, diversity trumps all. I don't recall any blacks on the court when Brown v Board of Education was argued and ruled on (Thurgood Marshall's tenure was 14 years away), and yet they ruled in favor of those of a race other than their own. One doesn't have to be of the same race or gender to rule honestly and fairly with regards to that race or gender, but arguing for Supreme Court diversity suggests a rather dim view of people, and assumes that such honesty and fairness is difficult if not impossible. That's a rather cynical view.

The nomination process may have become so politicized that the only secure nomination is someone who is an ultimate Washington insider, liked by both sides. If so, it misses a chance to reflect the experiences of the vast majority of Americans. Moreover, a gold standard for judicial selection based on exclusivity appears to contradict the values of ever-expanding opportunities we espouse.

Roberts' professional endeavors represent very limited legal experiences that do not appear to be balanced by other life experiences. I hope the Judiciary Committee members will try to determine whether Roberts has the breadth of experience that will help him understand the law beyond what is sometimes a very narrow text.

I don't know enough about John G. Roberts' positions on any issues to pass judgment on his suitability for the court. The concerns I have today are directed more to the process and standards for the nomination. For if confirmability politics continue to control the Supreme Court selection process, it will likely change the face of the court for the foreseeable future.

Ms. Hill, you have yourself and the Democrat Party you allied yourself with to thank for such an outcome. If diversity is really your goal, you'll only get it by de-politicizing the process. I'd like it de-politicized as well, but because I want nominees that best fit the job, not some gender or racial profile. As the points above note, it's the Democrats you have to convince on this point.