Let Judge Roberts Answer The Questions

July 25, 2005

I may be going against the conservative grain here, but I am not as bothered by the prospect of questions from Senate Judiciary Committee members seeking to determine how John Roberts’ judicial philosophy might guide him in considering certain specific questions of constitutional law, including abortion.

I certainly agree that judicial nominees should not telegraph how they intend to vote on a particular case that is either before or on its way to the Court, but I think both sides have used this more as an excuse to shield their respective nominees.

There are limited other ways to determine a nominee’s judicial philosophy: anecdotal evidence, written opinions or briefs, and scholarly legal writings. Where Judge Roberts is concerned, there is a dearth of available information in most of these areas.

Even in the case of a judge who has authored a voluminous library of opinions, we may not glean all we need to know about his judicial philosophy specific to the Supreme Court in that, by definition, he will not yet have served on the high court.

Judge Roberts, as fate would have it, has expressed his opinion that Roe v. Wade was wrongly decided, but he did so, as but one member of an appellate advocacy team in the process of zealously representing a client.

To further cloud the issue, he told senators during his 2003 confirmation hearing that Roe was “the settled law of the land” and “there’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

Given that he was being considered for a position on a lower court, not the Supreme Court, all we can infer from his statement is that he was simply reciting the truism that even originalist judges on lower courts are honor bound to follow Supreme Court precedent. It doesn’t tell us whether he believes the Supreme Court is also hamstrung by its own “settled” precedent in Roe.

Thus, I think it’s appropriate for senators to inquire into the nominee’s general judicial philosophy, such as the Court’s proper role in the constitutional separation of powers framework, and his views on specific constitutional provisions and issues.

To me, there is nothing wrong with asking Judge Roberts, “Do you believe the Court should see itself as result-oriented: establishing rights and remedies to address perceived wrongs, even if there is no reasonable constitutional authority to do so? Or do you believe, as you seemed to reveal in the now famous French fry case, that the judiciary should be passive and that no matter how great the perceived injustice the Court must not intervene to correct it in the absence of a sound constitutional basis for doing so?”

And, I think it’s even proper for the follow-up questions to penetrate with greater specificity, such as asking whether the Court has overstepped its bounds in particular areas, like abortion, the Commerce Clause and the incorporation doctrine (making federal constitutional rights applicable to the states through the 14th Amendment’s Due Process Clause).

I realize that we’re treading on delicate ground here. These issues, if not presently before the Court, inevitably will be in one form or another in the near future, and we don’t want judges or judges in waiting to prejudge specific cases. But I would err on the side of trying to discover a nominee’s judicial philosophy, being careful not to have him opine on specific cases.

After all, revealing a nominee’s philosophy regarding these issues does not necessarily answer, conclusively, how he would rule in the context of a specific case before him, considering the many variables that might be involved.

I think we must try to find out in advance whether Supreme Court nominees believe they will sit as part of a superlegislature or as a passive, albeit usually final, arbiter.

I personally believe Judge Roberts is a political and ideological conservative. (His stated opinion that the Rehnquist Court has not been completely conservative would not likely have been uttered by a political liberal.)

I’m also convinced he is a rigorously strict constructionist, believing the Court should interpret law according to its textual and otherwise reasonably ascertainable meaning. I’m not sure to what extent he is an originalist, since he seemed to indicate his judicial philosophy cannot be neatly categorized, but I would bet that he’ll try to defer to the Framers’ original intent when possible.

I further suspect Roberts has a healthy reverence for the doctrine of stare decisis and that even the Supreme Court must give great weight to its own “established” precedent.

It seems to me that stare decisis and strict constructionism may well be on a collision course in many of the controversial constitutional areas likely soon to be revisited by the Court: abortion, same-sex marriage, Commerce Clause, Due Process incorporation issues, and the Tenth Amendment, to name a few.

I’m all for finding out what Roberts thinks about these competing forces in constitutional law and where he might come down on them — apart from the context of actual cases. Conservatives, who occupy the high ground on the issue of the proper constitutional role of judges, should want to have this fight out in the open.

But alas I seriously doubt we’ll find much out about these things until Judge Roberts is confirmed, which I believe he will be, and begins voting and delivering his written opinions.