That ’70s Hearing

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The New York Sun

John Roberts settles into the hot seat today to face a grilling from the Senate Judiciary Committee, but he won’t be the only person testifying before his hearings are over. On Friday, the committee’s Democrats issued their revised witness list, and, well, get out your bell-bottom pants and polyester leisure suits, because we’re heading back to the early 1970s, when Judge Roberts was still in high school.


Marcia Greenberger, president of the National Women’s Law Center, is notable for her role in goading Senate Democrats into fighting the judicial wars in the first place, but in respect of “women’s rights” much of her work seems to relate to preserving Title IX, the 1972 law requiring equal funding for men’s and women’s sports at educational institutions. Roderick Jackson is also slated to appear. A high school girls’ basketball coach from Birmingham, Ala., he entered the national consciousness suing to get his job back after he was fired allegedly for raising Title IX-related questions about gender equity and sports funding at his school. The Supreme Court ruled in his favor in March.


The interim president of Planned Parenthood, Karen Pearl, will testify, presumably about the importance of preserving the “right to privacy” the Supreme Court confected in its Roe v. Wade ruling of 1973. A former White House Counsel of the Nixon era, John Dean, will make an appearance; he was first appointed to that post in July 1970. Look for a little variety from the executive director of the Leadership Conference on Civil Rights, Wade Henderson, whose organization’s Web site recently trumpeted the 40th anniversary of the Voting Rights Act, suggesting that C-Span viewers may want to haul out their denim and Peter, Paul, and Mary albums.


A public hungry for the up-to-date will have to settle for President Clinton’s secretary of labor, Robert Reich, whom the press release bills as an enemy of sweatshops and champion of minimum wage increases. Another witness, Carol Browner, might at least have some useful insights on “the importance of an open government,” a stated goal of the witness list. As the head of the Environmental Protection Agency, she watched on as her agency embarked on a frenzy of last-minute regulating in late 2000, the secrecy of which sparked a Freedom of Information Act lawsuit and led to a contempt citation against the agency (although not against Ms. Browner personally).


Don’t expect any novel legal thinking from the professors on the list. Judith Resnik, the Arthur Liman Professor of Law at Yale, is billed on her school’s faculty Web site as an expert in feminist law and gender, but she is equally well known for her books on procedure and for a June 11, 2003, op-ed in the New York Times in support of the judicial filibuster. David Strauss, a law professor at Chicago, wrote an article in 2001 entitled “Bush v. Gore: What Were They Thinking?” but otherwise appears to have spent most of his career touting a conventional left-of-center attitude toward constitutional interpretation.


Conspicuously absent will be any lively discussion from Democratic witnesses about the modern world. The Democrats haven’t even bothered to find a legal scholar with any notable views on the constitutional challenges facing a country in the middle of an unprecedented war against extremist Islamic terror. Instead, they appear to have decided to re-fight 30-year-old battles. As a result, these witnesses tell us more about the Democrats than they do about Judge Roberts.


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