Watching the Court

Senate Democrats should announce they will filibuster the nomination of John Roberts for the Supreme Court unless he offers convincing assurances that he will not be a conservative in the mold of Antonin Scalia or Clarence Thomas, said Duke constitutional law professor Erwin Chemerinsky.   He was among the Duke law faculty members who responded to the White House's announcement of Roberts' nomination Tuesday.

"What is very troubling about Roberts is there is nothing in his record that shows any support for civil liberties and civil rights," said Chemerinsky, the Alston & Bird Professor of Law at Duke. "In fact, everything that is known about him, including his nomination by a president who has described Scalia and Thomas as his model justices, suggests Roberts is very conservative and a threat to civil liberties and civil rights."

Neil Siegel, an assistant professor of law and political science, agrees that more needs to be known about Roberts before the Senate can confirm him to replace Justice Sandra Day O'Connor.

"Many who want Judge 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," said Siegel, who clerked for Justice Ruth Bader Ginsburg. "Someone of his acumen, experience and stature presently holds beliefs that will inevitably and profoundly affect the outcomes of many future cases. We would do our democracy a great disservice by pretending otherwise and allowing Judge Roberts to keep his views to himself."

Siegel said he believes the Senate should question Roberts about such issues as whether he believes the Constitution protects a woman's ability to have an abortion under some circumstances; whether state universities may promote diversity in their admissions policies; and his feelings about government funding of religion and religious displays, campaign finance regulations and race-conscious redistricting.

"No one's judgment of Judge Roberts should be rendered until he answers such questions. Right now, however, he seems neither a moderate conservative like Justice O'Connor, nor a radical ideologue like some others. Unless he provides extreme responses -- or refuses to respond -- to Senate questioning, my present sense is he should be confirmed. But we need to learn more."

Chemerinsky also hopes that senators will ask Roberts pointed questions about his views.

"For example, Roberts must be asked detailed questions about how he believes a Supreme Court justice should interpret the Constitution," said Chemerinsky, who has argued several cases before the Court. "Does he agree with Justices Scalia and Thomas that the meaning of the Constitution was fixed when it was adopted? Or does he believe, as do a majority of current justices, that there is a living Constitution? Does he believe in the protection of rights not mentioned in the Constitution, such as privacy and its protection for such rights as access to contraception and abortion? When does he believe it is appropriate for the Supreme Court to overturn a precedent?"

Chemerinsky expects Roberts to try and sidestep questions that might generate opposition. "President Bush undoubtedly chose Roberts because of Roberts' conservative views. The Senate needs to know these views before deciding whether to confirm him."

Both Siegel and Chemerinsky said it is impossible to overstate the importance of this seat on the Supreme Court.

"In the last few years, Justice O'Connor has been the fifth vote in 5-4 decisions to strike down laws restricting access to abortion, to uphold federal campaign finance laws, to allow colleges and universities to take actions to ensure diversity, to invalidate death sentences for ineffective assistance of counsel and to limit the presence of religious symbols on government property," Chemerinsky said. "John Roberts has the chance to change the law in all of these crucial areas.

"John Roberts is 50 years old. If he remains on the Court until he is 85, the current age of Justice John Paul Stevens, he will be there until the year 2040. The Senate and the American people need to know what they're getting in John Roberts. Senate Democrats should ask probing and detailed questions and make clear: no answers, no confirmation."