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8/11/2005

Lying liars

A lot of people (myself included) are insisting that John Roberts answer questions about his views regarding the Constitution and prior Supreme Court decisions. But Ezra Klein asks:
... why can't the prospective Justice just lie? Why can't s/he cook up the most compromise position imaginable and say what's necessary to calm the interrogation committee, then move to the Court and do whatever the hell they want?
The answer: they can and do. In his 1991 confirmation hearings, Clarence Thomas repeatedly insisted that he believed in a constitutional right to privacy:
  • "My view is that there is a right to privacy in the Fourteenth Amendment."
  • "I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause..."
  • "I, with respect to the privacy interests, would continue to say that the liberty component of the due process clause is the repository of that interest."
  • "Senator, as I noted yesterday, and I think we all feel strongly in this country about the -- our privacy. I do. I believe the Constitution protects the right to privacy."
  • "... the Court has found such a right of privacy to exist in Eisenstadt v. Baird and I do not have a quarrel with that decision."
  • "I think I have indicated here today and yesterday that there is a privacy interest in the Constitution, the liberty component of the due process clause..."
However, by 2003's Lawrence v. Texas, he had apparently misplaced the right to privacy:
  • "My duty ... is to decide cases agreeably to the Constitution and laws of the United States. ... I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy, or as the Court terms it today, the liberty of the person both in its spatial and more transcendent dimensions."
So it is certainly a possibility that Roberts could just lie his ass off, à la Thomas, and then do whatever he wants once on the Court.

There is still some (albeit diminished) value in making him answer questions - if he does pull a Thomas, it could easily be construed as grounds for impeachment. Of course, that would require a Democratic majority in congress, and one with a bit more intestinal fortitude than we've come to expect from most Democrats on Capitol Hill. But hey, you never know.

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