What To Ask Roberts

By Cass R. Sunstein
Monday, August 29, 2005

Judge John Roberts can hardly be counted as a stealth candidate for the Supreme Court. He served in significant positions in the White House and the Justice Department, and he has spent two years on the U.S. Court of Appeals for the D.C. Circuit. But in important ways, his public record is opaque. No one doubts that he is conservative, but it is not easy to say what kind of conservative he is. Does he have extremist tendencies, as some people fear, or is he conservative in the literal sense -- a skeptic about liberal activism who is devoted to stability in the law?

In recent weeks countless people have pored over his voluminous writings, but they have learned relatively little. As a young lawyer, Roberts was certainly to the right of center. And as an appeals court judge, he has raised questions about the constitutionality of some applications of the Endangered Species Act, voted to uphold the use of military tribunals to try suspected terrorists, and suggested that the president has broad authority to prevent federal courts from hearing a lawsuit brought by former U.S. prisoners of war against the Republic of Iraq. All of these positions are reasonable, and even taken as a whole his record does not clearly show what sort of Supreme Court justice he would be.

If the nation and the Senate want to learn more about Roberts's views, the confirmation hearings are the only opportunity. Many nominees have objected to specific questions that would require them to predict their votes about issues that might come before them. But a healthy confirmation process, firmly respecting that objection, could still shed a lot of helpful light on Roberts's views. It could also perform an indispensable educational service by enlightening the nation about current debates in constitutional law.

For example, Roberts is perfectly entitled to decline to say whether he would vote to overrule Roe v. Wade. But does he believe that the Constitution protects a general right of privacy? Judge Robert Bork, along with many others, has insisted that the Constitution protects no such right. This position would require the court to overrule cases recognizing the right to use contraceptives, to keep medical records private and to live with members of one's family. Does Roberts accept the privacy right?

Here's a broader question. Justices Antonin Scalia and Clarence Thomas believe in "originalism" -- the view that provisions of the Constitution should be interpreted to mean what they meant at the time they were ratified. When President Bush speaks of "strict construction," many people think that he means to endorse originalism. Is Roberts an originalist? Or does he think that the meaning of the Constitution evolves over time?

Many people object to judicial "activism." But there is intense disagreement about what this phrase means. Some people think that a court is playing an activist role when it strikes down acts of Congress -- as the Rehnquist Court has done on more than 30 occasions. What does Roberts understand by the idea of "activism"?

The Constitution does not explicitly forbid the national government from discriminating on the basis of race or sex. Nonetheless, the Supreme Court has read the Constitution to ban both forms of discrimination. Some conservatives disagree; they think that the Supreme Court has no legitimate basis for prohibiting either racial segregation or racial profiling at the national level. What does Roberts think about the question of whether the national government can engage in discrimination on the basis of race and sex?

Roberts clerked for Chief Justice William Rehnquist, and many have speculated that he essentially shares the views of his former boss. Can Roberts identify areas of the law in which he is at least tentatively skeptical about the position of the chief justice?

If questions of this sort are answered candidly, the Senate and the nation will learn a great deal. The problem, of course, is that any nominee to the Supreme Court will be exceedingly well prepared and will be tempted to use tactics of evasion and obfuscation -- as, for example, by saying that he will follow the law, that he has no agenda, that he believes in judicial modesty and that he will be faithful to the Constitution.

Roberts should be expected to do much better than that. Platitudes and evasiveness do not serve the democratic process.

Of course, confirmation hearings cannot be expected to give a full picture of a nominee's views. But Justices David Souter, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer -- to name just four -- provided answers that offered strong indications about their most fundamental beliefs.

A healthy confirmation process should give the Senate and the nation what they deserve: a general sense of Roberts's approach to constitutional law and of the basic understandings that he would bring to the Supreme Court.

The writer teaches at the University of Chicago and is the author most recently of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America."


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