A judicious script

JUDICIAL CONFIRMATION HEARINGS almost always reveal more about the interrogators than the nominee. So it was with the first day of questioning Tuesday for John G. Roberts Jr., the president’s choice for chief justice. But beyond the grand piece of political theater, there were moments of candor and revealing insights into the nominee’s philosophy.

Most important, Roberts reaffirmed his commitment to the principle of stare decisis, which Sen. Arlen Specter (R-Pa.) helpfully defined for viewers who didn’t go to law school as the importance of adhering to judicial precedents. Of course, at one level, for Roberts to say he believes in stare decisis is a bit like a college fraternity kid saying he believes in free beer.

But Roberts’ answer went beyond token lip service. “I do think it is a jolt to the legal system when you overrule a precedent,” he said, adding that “it is not enough that you may think a prior decision was wrongly decided.” Stability, he added, is another factor in determining whether a decision should be overruled. The subtext here was clearly Roe vs. Wade, and Roberts’ answer surely made opponents of a woman’s right to choose an abortion a bit anxious (although its genius was that it was sufficiently opaque to worry supporters of abortion rights, too).

Throughout, Roberts remained as inscrutable and affable as ever. By the third question of the day, Roberts gave an answer that he would repeat in various formulations countless times over the next eight hours: “I feel the need to stay away from a discussion of particular cases.” .

Specter, the committee chairman, played the role of earnest professor, trying to coax the answer he wanted from his student. Other senators tried different tactics but met with similar results. Sen. Charles E. Grassley (R-Iowa), a self-described non-lawyer, played the naif, asking about the role of judges and prompting an erudite (and purely theoretical) discourse on former Justice Benjamin Cardozo. Sen. Russell D. Feingold (D-Wis.) made a noble effort to learn Roberts’ views about civil liberties and executive powers after 9/11. Sen. Edward M. Kennedy (D-Mass.) asked about the civil rights movement.

The two senators with the most colorful parts were Joseph R. Biden Jr. (D-Del.) and Lindsey O. Graham (R-S.C.). Biden bullied Roberts, while Graham flattered him. Roberts proved immune to both approaches.

None of this is unexpected, of course, and none of it is likely to affect Roberts’ chances for confirmation. At one point, Feingold referred to Roberts as “the principal decision-maker” on the court, as if he had already been confirmed. But even if these hearings are mostly theater, they can still be useful -- as theater itself can be -- by offering the public a new perspective on something we thought we knew.

In the case of the Senate, we may not be favorably impressed. But at least this cast will be back for a second run of the show in a few months, after the president nominates a replacement for retiring Justice Sandra Day O’Connor. Here’s hoping they’ll have better lines.