[Mb-civic] What To Ask Roberts - Cass R. Sunstein - Washington Post

[William Swiggard]

What To Ask Roberts

By Cass R. Sunstein
Monday, August 29, 2005; Page A15

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?

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/28/AR2005082801073.html?nav=hcmodule
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