New 'Roberts Rules' Are Recipe For Surprise

by Jules Boykoff

"I assure you I have no agenda. I am not going onto the court with a list of things I want to do. My only agenda is to be a good judge."

Sound familiar? While this quote resembles a sound byte that might have emerged from the Senate Judiciary Committee's confirmation hearings last week on John Roberts' nomination to be chief justice of the Supreme Court, it actually came from the mouth of Antonin Scalia when, in August 1986, he was sitting in the same hot seat Roberts is now making look like a beach recliner.

If you thought the opening quote came from Roberts, however, you'd have good reason because on Sept. 12 he asserted that "I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind."

In 1986, Scalia was dubbed "charming," "collegial," "brilliant" and "well-respected" -- precisely the same terms being used to describe Roberts today. Scalia is now largely considered one of the most uncompromising ideologues on the court.

Meanwhile, the adulation for Roberts is building to a crescendo, with national columnists such as David Broder writing that Roberts is "ridiculously well-equipped" for the Supreme Court, Democrats describing him as "brilliant," and Arlen Specter calling for Bush's next Supreme Court nominee to be John Roberts' doppelganger. Even liberal members of the court are rumored to be in support of the Roberts nomination. Justice John Paul Stevens purportedly exulted to an acquaintance, "Isn't it great news?"

Roberts has wowed jurists, members of Congress and the media with his modest, measured way. You'd think he wrote the playbook on how to impress the Senate Judiciary Committee and to simultaneously sidestep prickly questions. In fact, he did. On Sept. 17, 1981, Roberts wrote a memo describing the role he played in the Sandra Day O'Connor appointment. He wrote: "I started in on the process of preparing draft answers to questions that were likely to be asked during the confirmation hearings. The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

Adherence to these new-wave "Roberts Rules" worked for O'Connor and for Scalia, and now they are working for Roberts himself, who is well-positioned to be confirmed before the end of the month.

Trying to predict future judicial behavior of a nominee through scrutiny of his or her past record has always been a capricious endeavor. But the new-wave Roberts Rules make an already challenging task completely unpredictable. Roberts is smart enough to, as he put it in his memo, "avoid giving specific responses to any direct questions on legal issues likely to come before the Court," while simultaneously strutting his legal stuff.

We will be completely at his whim once he is elevated to the court. John Roberts may not become the next Antonin Scalia, but we should not be surprised if the future reveals that he is.