Authors: William Bernhardt
23
B
en was not surprised to hear that the first person to question Roush would be Senator Matera, who had decided to grace the committee with her presence once more. The opposition knew what Gina Carraway knew: the biggest audience, and thus the opportunity to make the biggest impression or do the greatest damage, would come on the first day of questioning, before most of the home audience switched their attention back to
The View
or
General Hospital.
During the break, Ben visited Senator Keyes’s chambers to try to persuade him to select a more neutral initial interrogator, in the name of “dignity and justice,” but Keyes’s AA told Ben he was “unavailable.”
The second Ben and Roush passed through the gabled double doors, the bright lights came on and Ben’s sweat glands kicked into overdrive. He still couldn’t believe he had been chosen for this high-profile role—he, the least experienced senator in Congress. Even Beauregard seemed to support Ben’s involvement as Roush’s advisor, despite the information he was getting from his polls. Did that make any sense?
Christina, just a step behind him, whispered into his ear. “The big red is on. Don’t look.”
Meaning the big red light, the one that informed the gallery that their image was being broadcast from coast to coast, and for that matter, throughout a sizeable chunk of the rest of the world. They had been coached to never look directly into the camera. As with actors in a sitcom, a direct stare broke the fourth-wall illusion that was the fundamental assumption of television programming, even purportedly nonfiction programming like this. Viewers wanted to believe they were flies on the wall, watching while their subjects were unaware—when in reality no one could forget for a moment that they were being televised.
After the committee had retaken their seats, Ben pulled the microphone closer. “Before we begin,” he announced, “I want to remind the committee that Judge Roush will not entertain any questions—”
“You have not been recognized, sir,” Keyes said. “If you wish to speak, you must be recognized by the chairman of the committee.” He paused. “That would be me.” A tittering of laughter from the gallery ensued.
Ben took a deep breath. “Very well. May I be recognized to speak, Mr. Chairman?”
“No. You are not a member of the committee, and you are not the nominee. Your function here is simply to advise the nominee.”
“Nonetheless,” Ben said, undeterred, “in the interests of saving time, I would remind the committee that any questions posing hypothetical cases or probing into his personal life—”
His voice went dead. Or more accurately, his microphone went dead. Ben’s voice became a whisper of what it had been before.
Senator Keyes smiled. “I control the microphones, sir. I will turn that one back on when you are recognized to speak. I must remind you again that this is not a courtroom, and you are not here to perform as an advocate. We have rules designed to help us get at the truth with a minimum of fuss, and I will enforce them.”
Ben sat in his chair and glowered. Two options presented themselves to him, neither of them good. He could continue to insist on making a statement, perhaps instructing Roush not to speak until he had, but that would only make them appear obstreperous and suspect to the television audience. Or he could cave and let Keyes bulldoze by, at the risk of looking a total wimp to the television audience and setting a precedent that would make him worse than useless for the remainder of the proceeding.
While Ben pondered what to do, Senator Keyes recognized the distinguished senator from Wyoming to lead the questioning of the nominee. Looks like the die is cast, Ben thought. I’m a wimp on national television.
“Judge Roush,” Senator Matera said, pulling the microphone closer, “I’ve reviewed the cases you’ve handled on the Tenth Circuit and I have a few questions.”
“I expect you do,” Roush said, smiling. The power returned to the microphone just after he began speaking. “But first I believe my advisor Mr. Kincaid wanted to remind the committee of a few of the ground rules. And,” he said, looking directly at Keyes, “this is my time, so I would appreciate it if the wind didn’t suddenly go out of the microphone’s sails.”
Bless you, Ben thought, as he took the mike. “As I was saying before: no hypothetical cases, no questions about political positions or issues, no prying into personal matters.”
“Why, Mr. Kincaid,” Senator Matera said, flashing a smile that could have belonged to a woman thirty years younger, “you’re taking away all the fun stuff.” Laughter filled the gallery, easing much of the tension. She was good, Ben realized as he gazed across the dais at her twinkling eyes. Be afraid. Be very afraid.
“Judge Roush, let me ask you a question I think won’t bother even Mr. Kincaid. As I said, I’ve been reviewing your record,” which of course meant her staff had been reviewing his record and had provided her a summarized coverage, “and it appears to me you fancy yourself something of a judicial activist. Why do you—”
“Excuse me,” Roush said, interrupting, “but I’d like to correct that.”
“Judge,” Matera said, still smiling, “I haven’t asked you a question yet.”
Roush spoke over the laughter. “Maybe not, but you’ve made a statement that is patently incorrect. I am not a judicial activist. To the contrary, I am a judicial conservative. If I had to label myself with a single judicial philosophy, it would probably be fundamentalist positivism.”
“Well…you’re using words too big for a simple country girl like myself. Perhaps you could explain the difference.”
“The theory of judicial activism—and here I use that phrase as it is used in legal and academic circles, not as it is bandied about by politicians—is that a judge can interpret the law so as to advance political beliefs that are not currently enshrined in established law. A fundamental positivist recognizes that society does change over time and that occasionally the law requires modification, but nonetheless considers it a judge’s foremost duty when interpreting the law to ensure continuity. To follow precedent. To recognize that the law must be a knowable, predictable entity.”
“So you don’t think judges should usurp the role of legislators?”
“Certainly not. I don’t know anyone who does. That’s a charge leveled by critics who don’t like a decision. Rather than simply acknowledging that intelligent people can still have different opinions, they blame ‘activist judges’ and imply that they have done something illicit or improper, something judges aren’t supposed to do.”
“And what exactly are judges supposed to do?”
“Enforce the Constitution, and the lesser laws to the extent that they do not conflict with the Constitution.”
“And nothing more.”
“Nothing more.” Roush smiled. “Believe me, that’s plenty enough to keep a man busy.”
Ben eyed Senator Matera carefully. She had a way of looking out the corner of her eyes that reminded him of Brer Rabbit in the Disney cartoon—the look of the trickster. He kept waiting for the other shoe to drop.
“Well, then,” Matera continued, “how do you feel about these so-called penumbral constitutional rights?”
“For starters,” Roush said, “I think it was a terribly poor choice of language. When Justice Brennan wrote that a woman’s right to choose was a constitutional freedom that could be found in the penumbra of the Constitution, he implied to some readers that it wasn’t really there.”
“That is what the word ‘penumbra’ means, isn’t it? Something on the outside, like an aura. But not contained within the entity itself. One of my clerks was kind enough to bring a dictionary.”
“Exactly my point. I don’t think that’s what Justice Brennan meant. I think he meant to say that there are rights squarely embedded in the Constitution that are not expressly delineated.”
Matera wagged her head. “I must tell you, Judge, this is sounding very activist to me.” More laughter. She may not say much, Ben thought, but she does know how to entertain.
“With respect, ma’am, I disagree. A firm tenet of the fundamental positivist’s judicial outlook is the fact that the world changes. We all know that.
Tempus mutantor.
The founding fathers could not have anticipated developments like the automobile, television, the Internet. The increased ability of the government to oversee, and potentially control, our lives. The widespread technological innovations that have made invasion of privacy so easy. That being the case, we have two choices. We either admit with resignation that the Constitution is no longer relevant—or we look to the core values that underlie the Constitution and apply them to new issues as they arise. The individual’s right to privacy was clearly one of the fundamental concerns of the Constitution. You can see it in the First Amendment, the Second, the Fourth—almost everywhere, especially in the Bill of Rights. The founding fathers never contemplated that a government would attempt to ban abortion; women had quietly been obtaining abortions since the first European settlers came to this country. All Justice Brennan did in
Roe v. Wade
was apply the fundamental principle of privacy to a new issue.”
Matera peered down through her glasses. “I take it then that you support
Roe v. Wade
?”
Ben grabbed the mike. “No specific cases, remember?”
Roush smiled. “It’s all right, Ben. I can answer that. The truth is, as a judge, I neither support nor fail to support any individual decision. I review the facts of an individual case and apply the law. So long as there are no other intervening considerations, I apply precedent.”
“And
Roe v. Wade
is one such precedent?”
“Yes, ma’am. Has been for more than thirty years.”
“But it could be reconsidered?”
“Any decision can be revisited in a subsequent case, if there are grounds. New issues. But that can’t be based on anyone’s—any judge’s—personal beliefs. It must be based upon new consideration presented by the case at bar.”
“So you wouldn’t strike down
Roe v. Wade.
”
“Ma’am—”
“Right, right. No specific cases.” She paused, then turned a page in her notes. Ben mentally commanded his fingers to stop drumming on the tabletop. This little exploration into legal philosophy had been fine, possibly dry enough to persuade a large portion of the audience to switch channels, but Ben knew that Matera had other more malevolent goals for the first day of the hearing, and waiting for her to show her true colors was giving him an ulcer.
As it happened, he didn’t have to wait much longer.
“Judge,” Matera continued, “if you won’t talk about
Roe v. Wade,
perhaps the single case of greatest interest to everyone in America, would you consent to discussing
Powers v. Georgia
?”
Ben felt his heart drop. They had known this was a possibility, of course. But somehow, he had thought that even Senator Matera wouldn’t have the effrontery to try this tactic.
“What about
Powers,
sir? Would you have any interest in repealing it?”
Roush licked his lips, pulled the microphone a little closer, all the while doing what Ben thought was a magnificent job of keeping his emotions in check. “I can’t address any ruling in the abstract. I have to know the circumstances of the case at bar.”
“Oh, come now, Judge. You must have some personal feelings about this.”
Ben winced; it was the least emotive facial expression he could manage.
Powers v. Georgia
was the infamous 1988 Supreme Court case which, in a decision written by Justice Rehnquist, upheld a Georgia sodomy law, declaring that it did not offend the Constitution to criminalize consensual relations between male homosexuals. What the
Dred Scott
case was to African Americans,
Powers v. Georgia
was to the gay and lesbian community.
Roush’s face reddened only a bit, but on the television screen he looked as if he were wearing rouge. “Whether I do or do not have any personal feelings would not be relevant to my work on the Supreme Court. My work as a justice would simply be to determine whether the state statute offends the U.S. Constitution.”
“Oh, please, sir. With all due respect, I’m nobody’s fool.”
“I never said—”
“The first moment in your life you were in the public spotlight, you were compelled to declare to the world your participation in the homosexual lifestyle. Do you seriously expect me to believe that you wouldn’t jump at the chance to overturn
Powers
?”
Roush spoke in careful, measured tones. “I seriously expect you to believe that I wouldn’t overturn anything unless there was a constitutional basis.”
“Then you’ll find one. That’s what you activist judges do, isn’t it? I bet you’d love to bury that opinion.”
“As a matter of fact,” Roush said, “I have a lot of respect for that opinion.” Red blotches were creeping up his neck, but Ben hoped he was the only one close enough to notice. “Just as I have a great deal of respect for the late Chief Justice Rehnquist. I don’t believe for a minute that Justice Rehnquist or those who voted with him made their decision based on any personal prejudices, homophobia or anything else. As Rehnquist explained, antisodomy statutes are as old as this nation. It simply isn’t credible to suggest that the framers of the Constitution would’ve been offended by such laws.” He took a deep breath. “That of course doesn’t mean that enlightened senators such as yourself couldn’t pass a law prohibiting statutes they deem discriminatory. It just means they aren’t unconstitutional.”
Ben released his breath. Damn—this man was good. He could almost stop worrying about him—or he might have if the good senator from Wyoming had left it at that.
“Judge Roush, let’s cut through all this judicial rigmarole and talk turkey, shall we? You are a self-professed homosexual.”
“Objection,” Ben said. “Or—point of order. Whatever you want to call it, Mr. Chairman. This question is obviously veering into private matters.”
“There’s nothing private about it!” Matera said, slapping the table. “The man came out of the closet at a press conference!”
“I’d have to agree with her on that one,” Chairman Keyes said, as if his opinion were a surprise to anyone.