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Rigorous Questions Would Be Only Fair
Editor's Note: Neil Siegel is an assistant professor of law and political science at Duke
Durham, N.C. - From the little time I have spent around Judge John G. Roberts Jr., this much is clear to me: He is warm and charming; he is very smart, and he was a top Supreme Court advocate when he joined the U.S. Court of Appeals in Washington. But Roberts lacks much of a record. And if confirmed, he may still be on the court when my baby daughter turns 30. Our senators must discharge their constitutional duty by asking him respectful but rigorous questions on issues of monumental importance to our children's future.
Many who want Roberts confirmed will oppose dignified but tough questioning. They will insist he must not prejudge the merits of cases that might come before him.
I respectfully disagree. The President chose Roberts for specific reasons. To be sure, some concern his outstanding credentials and confirmability. But others implicate the President's impression of the nominee's very conservative legal views. Someone of his stature holds beliefs that will profoundly affect the outcomes of many future cases.
We would do our democracy a disservice by allowing Roberts to keep his views to himself. Senators must perform their constitutional function: Provide or refuse to grant informed "consent." By design, Senate confirmation is essentially the only time a popular check can be exercised on justices who affect our lives enormously. Too much is at stake to proceed differently. Justice Sandra Day O'Connor was often the controlling moderate voice on a divided court.
Our nation must keep extremists on the right and left off the court. Otherwise, that extraordinarily powerful institution cannot maintain democratic legitimacy.
Senators should not ask Roberts how he would vote in specific cases or on particular laws. Concerns about prejudging the merits are real regarding such questions, and a judge's answers should be informed by a case's context and arguments presented in litigation.
But senators should ask the nominee about his legal methodology, ideology and temperament. They should inquire about how the Constitution should be interpreted - whether its meaning was fixed at the time of adoption or it changes as our core commitments evolve. Senators should ask about the extent to which precedents bind current justices, and whether he subscribes to the modern consensus on broad federal power and privacy rights. They should require him to articulate his general views on constitutional issues that define our time. Judges can adjust their orientations when faced with fact patterns or a changing world, so no valid concern about prejudgment exists.
Here are some specific suggestions.
Roberts informed senators during his lower-court confirmation hearing that he would faithfully apply Supreme Court decisions on abortion. Justices, however, can vote to overrule precedent. Americans will want to know whether he believes the Constitution protects a woman's right to have an abortion under some circumstances.
O'Connor cast the decisive vote in a decision that preserved diversity as a permissible goal in public higher education. The country has an abiding interest in learning whether Roberts believes state universities may promote diversity in their admissions policies. It would be tragic if the nominee of a president who values diversity undid O'Connor's compromise on affirmative action and returned us to a more segregated America. The administration cannot have its diversity and destroy it, too.
It appears from his vote in an environmental case that Roberts' view of the scope of Congress' lawmaking power is relatively cramped. He criticized his court's conclusion that a regulation governing the treatment of a wildlife species was within Congress' commerce power. It will be important to probe his understanding of the extent of congressional authority to protect the environment, safeguard civil rights and fight crime under its constitutional grants of power.
It will also be key to learn Roberts' legal perspective on government funding of religion and religious displays, campaign finance regulations and race-conscious redistricting.
No one's judgment of Roberts should be rendered until he answers such questions. Right now, however, he seems neither a moderate conservative nor a radical ideologue. Unless he provides extreme responses - or refuses to respond - to Senate questioning, my sense is he should be confirmed. But we need to learn more.
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