Questions for Judge Roberts
The traditional response judicial nominees like to give to questions about their views of the Constitution is, "I can't answer that question because the issue might come before me. I can't prejudge the situation."
However, this is not always a proper answer. Far from it. One should demand a judicial nominee, such as Judge Roberts, answer judicial philosophy questions, such as "How do you view the scope of the Commerce Clause?" with a follow up of reading to him/her, Chief Justice John Marshall's early comments on the clause in terms of its plenary (essentially absolute) scope. If I correctly understand Roberts' law review article on the Constitution's contracts clause, Roberts will, when cornered, have to answer that he disagrees with America's most important Justice of the early US Supreme Court, and intead agrees with the radical Supreme Court of the late 19th Century that was biased in favor of capitalist robber barons against the rest of the nation (he won't say it that way, of course). That ought to get some attention among the grass roots even within the Republican Party.
On abortion, it's simple: "Do you believe there is a right of a woman to have an abortion in our Constitution?" This is a philosophical question. If he won't bite, ask him "Do you think Plessy v. Ferguson was decided correctly or do you think the better decision is Brown v. Board of Education?" If he says he can't answer, just ask why he believes cases involving the legality of racial segregation laws will come before the court. It's settled, right? So, then, Judge Roberts, isn't Roe settled no differently than segregation such that there is no practical way he can foresee him overturning the right of a woman to have an abortion? If he says it is not settled, then ask, "So, Judge Roberts, if it's unsettled, you can't tell us whether you would uphold Roe or completely overturn it?" "It's possible, then, you could vote to overturn Roe v. Wade?" Look, with Roberts' wife's strong, public anti-abortion views (no different than Hillary Clinton's views on, say, health care before she became a senator), we'll know the answer won't we?
Another way to ask the nominee questions about such subjects is to say, "Have you ever told anyone outside your wife, perhaps, your views about Roe v. Wade? About specific cases involving the commerce clause? About specific cases involving the contracts clause?" Then, you ask, "Why will you not tell the committee these same views you espoused to others?" That's what really rankles me about the process. We all have our views we tell others. We have our opinions. Yes, we might change our mind when confronted with several lengthy legal briefs with particular facts, but still, WE HAVE OUR OPINIONS. That's what senators should demand from a nominee who speaks to anyone about his or her views of cases. Senators should, again, not be treated like second class citizens.
If I was asked my judicial philosophy, I would proudly state it: My judicial philosophy is firmly rooted in the Founder's view of the judiciary: If I'm a judge, even on the US Supreme Court, when it comes to economic issues, I start with the assumption that I must defer to the legislature and past precedent. A key ingredient in the Founder's wisdom was to view the Commerce Clause in a very, very broad manner and essentially reading out the 9th and 10th Amendments in terms of economic issues. Our Founders were clear that an important responsibilty of open government was to allow legislatures to do what they thought best in terms of economic development and sustaining of our nation--even if we disagree with the particular legislation. On personal liberty issues, particularly the rights of minorities to hold opinions contrary to the majority, the Court's role is to protect those minority views consistent with due process and equal protection. Are there gray areas? Absolutely. Are there areas where discerning how Madison, Hamilton, Jay, and Adams (and Jefferson along with the others on the bill of rights) would view matters is essentially impossible to find? Yes. One must approach the Constitution with respect and integirty to the overall system of government our Founders' established. One must use the tools of reading the text, reviewing legislative, judicial, and even political and social history, and respect precedent consistent with that history and text. And for those who think the Constitution is a rigid document, then read McCulloch v. Maryland (1819), which is as strong a statement about the organic nature of the Constitution that's ever been written.
See? That wasn't so hard, Judge Roberts. Senators should not take answers at face value such as "I am a strict constructionist" or "I believe in original intent." Those are evasive answers that tell us nothing. Scalia and Rehnquist use the same vacuous rhetoric and then go merrily on their way overturning laws they don't like and for reasons having nothing to do with the Constitutional Founders' views on, for example, state sovereignty. If Judge Roberts cannot describe his judicial philosopy with any level of concreteness as I did in the previous paragraph, he is not as bright and honest as some people are saying he is.
Final thoughts: Am I giving Roberts a way out by letting him know this ahead of time? No. First, my blog isn't famous like Atrios. But, even if Atrios linked to my post here, Roberts simply will look like he's dancing unless he answers in a straight-forward manner or with integrity. The questions are reasonable and the burden is on him to respond. My sense, so far, of Roberts is that he's much more right wing than O'Connor. Let's not confuse personable with reasonable in terms of judicial philosophy. The best solution is to put Roberts on the shelf until Rehnquist retires. Replacing Rehnquist with Roberts is a wash, judicial philosophy-wise.