Law Profs Weigh in on Hearings

While John G. Roberts Jr. ’76 faced a combative Senate Judiciary Committee yesterday in his confirmation hearing to sit as chief justice, three Harvard Law School heavy-hitters weighed in on the propriety of the Senate’s inquiries.

A crowd of 40 onlookers plus a slew of standing stragglers peered in from the hallway as Beneficial Professor of Law Charles Fried, Frankfurter Professor of Law Alan M. Dershowitz, and Tyler Professor of Constitutional Law Richard H. Fallon traded friendly quips.

“I do wish the President had nominated Larry Tribe...or Alan Dershowitz,” joked the conservative Fried, referring to two of his more liberal colleagues at the Law School.

Fried, who served as Solicitor General to former president Ronald W. Reagan and will testify in front of the Senate Judiciary Committee in support of Roberts, argued yesterday that a judge should not disclose his opinions regarding specific cases.

“I think a judge should not commit himself,” he said. “You have to be open to the arguments. Otherwise, you’re not acting like a judge.”

An adamant Dershowitz dissented.

“I do want to know how a justice will decide,” he said. “[Former Chief Justice William H. Rehnquist] was the most utterly predictable judge....Justices come to the bench with agendas. They are not blank slates.”

Dershowitz drew ire from conservatives last week when, only hours after Rehnquist’s death, he referred to the late chief justice as “a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting.”

An unapologetic Dershowitz told The Crimson yesterday that he stood by his comments.

“I’m proud of what I said and I’d repeat it,” he said. “And everyone else is on notice: when you die, I’m not going to speak good of you if you’ve done bad things. You don’t get a pass on bigotry.”

He said his hard-line attitude comes from carefully weighting parental advice. “My mother said, ‘never talk ill of the dead’ but my father said, ‘tell the truth,’” Dershowitz said.

As for the man who seeks to fill Rehnquist’s seat, Dershowitz said Roberts, a former Rehnquist clerk, will be something of a “Rehnquist-lite.”

Fried said he hoped that Roberts would eschew his predecessor’s tendency to avoid excessive debate in favor of a “looser philosophy.”

In a stab at the 50-year-old Roberts, who, if confirmed, will be the youngest chief justice in 200 years, Dershowitz said, “Today, they’re trying to nominate fetuses in the hope that they will be kept alive like [Terri] Schiavo.”

Fellow panelist Fallon echoed Dershowitz’s concern about lifetime appointments, advocating term limits and arguing that potential justices should be as candid about their views as possible.

“It seems to me a judge with a completely open mind would be a judge with a completely empty mind,” Fallon said. “I don’t think it’s appropriate to say that judges and justices should not have agendas.”

But a persistent Fried claimed victory when Dershowitz conceded that justices excessively stalwart in their views are a detriment to the Court.

“Now you’re agreeing with me about the open mind,” Fried said gleefully. “I’m glad I’ve persuaded you.”

Next on Fried’s agenda: persuade the Senate. He is set to testify tomorrow.

—Staff writer Robin M. Peguero can be reached at peguero@fas.harvard.edu.