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 far-right conservative in the mold of Antonin Scalia or Clarence Thomas.
What is very troubling about Roberts is there is nothing in his record that shows any support for civil liberties and civil rights. 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.
For example, as an attorney at the United States Department of Justice, Roberts signed or wrote several briefs, and argued key cases, urging restriction of abortion rights. There is nothing to indicate that these are not his views on abortion or to suggest he will not be a vote to limit reproductive choice and ultimately to overrule Roe v. Wade.
Imagine in the 1950s a nominee who had consistently written briefs urging the overruling or limiting of Brown v. Board of Education. The nominee should have been rejected by the Senate unless he or she could show that the written record was not an accurate reflection of his or her views. That is exactly how the Senate should treat John Roberts.
Less is known about Roberts than many other candidates on the reported short list that Bush was considering to replace Justice Sandra Day O'Connor. But the absence of a paper trail should not be interpreted as a lack of views on Roberts' part. Nor should it be taken to mean that the Senate must confirm Roberts based on ignorance.
Ideally, senators of both political parties will insist that Roberts answer questions about his views and indicate he cannot be confirmed without full and honest replies. At the very least, Senate Democrats should make clear they will filibuster Roberts, or any nominee, unless key questions are answered.
Certainly, Roberts should not be asked, or expected to answer, how he will vote in specific cases or on particular laws. Obviously, those decisions should be a product of the context of the challenges and the arguments presented. But Roberts should not be able to avoid answering questions just because a topic may come before the Court. Roberts has views and those views are likely to determine how he will vote as a justice.
For example, Roberts must be asked detailed questions about how he believes a Supreme Court justice should interpret the Constitution. 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?
Undoubtedly, Roberts will try and sidestep questions that might generate opposition. But it is up to the Democrats to insist on answers to these and similar questions. The Constitution creates no presumption in favor of presidential nominees for the Supreme Court. President Bush undoubtedly chose Roberts because of Roberts' conservative views. The Senate needs to know these views before deciding whether to confirm him.
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. 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.