Fair Questions For Roberts

By Walter Dellinger
Wednesday, July 27, 2005

What may senators expect to learn about Supreme Court nominees before voting on confirmation? And how can senators properly gain that knowledge? These are not easy questions.

Although legitimate institutional concerns call for restraint in the examination of a judicial nominee, the Senate's need for information beyond mere professional credentials is real. Being first in one's law school class makes for an excellent law clerk, but the attributes that make for a fine justice are far broader. As the late Charles Black once said, no serious person is under the illusion that "a judge's judicial work is not influenced and formed by his whole lifetime, by his economic and political comprehensions, and by his sense, sharp or vague, of where justice lies in respect to the great issues of his time." Presidents take all of this into account in making nominations; there is no good argument that the Senate should consider less.

But from what source?

For a prolific scholar, reams of published articles provide insights into the kind of justice he or she would be. For those who have been lawyers and not scholars, it is tempting to judge them from the briefs they have filed, such as John Roberts's briefs as deputy solicitor general urging that Roe v. Wade be overturned. The utility of briefs is limited: They are documents written to express the client's views, not the advocate's, and every solicitor general has submitted arguments with which he or she personally disagreed. On the other hand, it does not seem unfair for a senator to associate a nominee with the most fundamental legal policies of an administration in which the nominee chose to serve in a senior policymaking position. Such briefs would provide a useful starting point for questioning a nominee about his or her agreement or disagreement with the positions taken.

An ever more valuable -- but questionable -- source of information would be memos written by a nominee expressing his own views as part of the government's internal decision-making process. I joined all living former solicitors general in arguing that memos written by court of appeals nominee Miguel Estrada as an assistant to the solicitor general were properly withheld from the Senate: The precedent of releasing such confidential documents would unduly chill the candor of analysis by Justice Department lawyers as well as by law clerks to judges and legal counsel to senators. Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn't any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel -- undistinguishable as a matter of law from memos to the solicitor general -- suggest that the memos to the latter will be made public as well.

But why just pore over old memos for clues? Why not simply ask the nominee directly what he or she thinks about contentious social and legal issues? The standard objections to such questioning seem unpersuasive. It is said, for example, that a judge should be open-minded and that it is inconsistent with the obligation to answer a question such as whether Roe v. Wade was rightly decided. But having views doesn't preclude an open mind -- nor, as Michael Kinsley once said, does hiding your views make them go away.

Why would it be inappropriate to know as much about Roberts's views on controversial legal issues as we know about Justice John Paul Stevens's views? What is wrong with asking a nominee whether he or she agrees with Justice Antonin Scalia's dissenting opinion in Planned Parenthood v. Casey when we know that Scalia agrees with it and Scalia will be able to take part in future related cases without anyone suggesting that to be a problem.

There are legitimate concerns that should make some questions off limits, such as a question about an actual case coming before the court. More generally, nominees should answer questions about past cases and not future ones. And everyone involved in the process should make clear that by answering questions about his views on contentious legal and social issues such as abortion or affirmative action, the nominee is not making any commitment about how he or she would vote on any future case. A nominee may well come to a different view after having read the briefs and heard arguments or may find that his general views do not determine how to resolve the issue raised in a particular case. But with that important understanding, there is no reason why a nominee cannot answer questions that will give senators a meaningful sense of what kind of person the nominee is.

The writer is a Washington lawyer and a professor of law at Duke University. He served as an assistant attorney general from 1993 to 1996 and as acting solicitor general from 1996 to 1997.

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