Supreme Court nominee John Roberts’ confirmation hearings begin next week, and there is much discussion about the type of questioning he will receive. The Constitution says only that the Senate has the job of giving advice and consent to the president regarding his choice. There is little constitutional guidance about the legitimacy of the questions themselves.
I have friends who strongly support Bush, his policies and perspectives, and friends who think Bush has harmed us and cares little about the law. But, I suggest that for people on both sides of Bush’s presidency the questions and expectations for Roberts and other nominees should be the same.
It is tempting to ask questions about policy, but “Do you think Roe vs. Wade was correctly decided?” is a bad question and should not be answered by any nominee. It is a bad question because embedded in this case are several legal principles about privacy, states’ rights, precedent and even commerce. Someone’s opinion about Roe does not really get at important distinctions about the role of the government in these areas.
Instead, we should hope for questions like these:
“Do you believe that privacy is a right implied by the Constitution? Over the course of the last century even very conservative judges have agreed that some form of privacy can be implied by the First, Second, Third, Fourth, Ninth and Fourteenth Amendments, as well as the Preamble to the Constitution. Judges disagree about what privacy means and how far it extends, but depending on the issue most acknowledge that it exists. If a nominee says privacy is not in the Constitution, we know that this justice would be aggressive in overturning past cases that have come before the court.
“What circumstances must be present before precedent is overturned? If a nominee acknowledges that precedent can be overturned only when precedent has proved to be unworkable, incompatible with changing facts such as our knowledge of science, or incompatible with other cases of the past, then we know that the nominee will be careful with the law. This standard for changing precedent was set out by the Court in 1991. Another long-standing rationale for overturning precedent is when judges agree that a past case rested on an egregious error in constitutional understanding—something more than simple disagreement with the approach of earlier judges. Any other sort of answer demonstrates that the nominee would overturn precedent when he or she does not like an earlier case.
“How can one distinguish between the federal government’s role and the state government’s role in cases that involve same-sex marriage, abortion, euthanasia and commerce? Many of these issues are considered individual rights cases, but a nominee’s response that invokes Article I of the Constitution for analysis demonstrates a commitment to separation of powers and federalism. Separation of powers and federalism are bedrock principles of a self-governing people because they decentralize authority. The Framers of the Constitution said this kind of decentralization was necessary because people are not angels and concentrated power will corrupt those who hold it.
“Give examples of the kind of commerce the federal government may regulate and the kind of commerce it may not regulate. In the 1930s, President Roosevelt’s New Deal effort to bring us out of the Great Depression necessitated a broad understanding of interstate commerce. When the Supreme Court agreed to a broad definition this gave the federal government the power to regulate almost every area of our lives. In the mid 1990s, under leadership by then Chief Justice William Rehnquist, the court began to roll back this power. Now we are in a strange period where the definition of interstate commerce is somewhat in flux. Whatever definition we use will determine rights that we have in areas as diverse as environmental law, use of pills that prevent implantation of fertilized eggs, family law and gun control.
Finally, it is important to remember that whatever judges rule, self-government in a republic means that there is no final word. We always have a role in continuing to construct our own law. Judicial invalidation of a federal law can move the debate to the states. Judicial articulation of a right can encourage people to find non-governmental ways to decrease abortion, make our streets safer or protect the environment. Self-government takes work and whatever our politics we should not expect a judicial nominee to do that work for us.
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