July 22, 2005

What Should John Roberts Be Questioned About?

Apparently Orrin Hatch, a senior member of the Judiciary Committee and someone who will no doubt be a leader in the Roberts nomination process, said the following on Fox News:

"I think senators can ask any questions they want. I've said, no matter how dumb the question may be. But the, the nominee doesn't have to answer them and he should not, under the canons of judicial ethics, he should not answer questions on any issue that possibly would come before the Supreme Court. Otherwise, he would be foretelling how he would vote on those issues and then they would hold that against him. So it's a little bit like Biblical Pharisees, you know, who basically are always trying to undermine Jesus Christ, you know, it goes on the same way."

Now putting aside the comparisons of Roberts to Jesus and liberal groups to the Pharisees, do you agree with this? My thought is this - why on Earth would members of the Senate be interested in anything about Roberts other than matters he was likely to deal with on the Court. I mean sure, if he can recommend a great sushi place on Capitol Hill, I suppose there is no harm in asking him for directions to it (and about the availability of parking). But it strikes me that if you are going to give someone life tenure on the most powerful court in the land (arguably, in the world), and you only have a limited amount of time to question him to determine his fitness for the job and consider his likely future behavior, what exactly is more important than quizzing him on matters that can give us insights into the kind of justice he'll be, and the kinds of rulings he'll make?

Posted by armand at July 22, 2005 11:34 AM | TrackBack | Posted to Law and the Courts


Well, they could ask:

What do you think of the Paris Hilton tape?
Coke or Pepsi?
How do they get those little ships in the bottles?
How much wood could a woodchuck chuck if a woodchuck could chuck wood?

Posted by: binky at July 22, 2005 11:49 AM | PERMALINK

i think, rather disingenuously, hatch, a very bright man and attorney, is attempting to muddy the distinction between asking after judicial philosophy and offering specific hypotheticals.

a lot of the judicial ethical canon is designed to ensure that the appearance of impartiality is preserved at any cost. thus, recusal is appropriate not when a judge has a conflict of interest, necessarily, but when there is an appearance of a conflict such that the public's confidence in the outcome of the proceedings would be called into question. answering, point blank, whether roberts would overrule roe given the right case thus is an inappropriate question inasmuch as it would destroy any appearance of impartiality.

it's related to the united states' entrenched reticence to have courts issue advisory opinions, ruling prospectively on the law: consistent with the strong interest in protecting individual liberties, unique to this country in its robustness and nuance, and fairly unusual even in its most broad contours, is that one is entitled to a hearing of a dispute by an impartial judge / jury.

that said, i think it's well within the senate's prerogative to inquire whether, broadly speaking, roberts believes that the due process clause of the fourteenth amendment has a substantive component, whether substantive due process, if he thinks it exists at all, includes a broad-stroke right to privacy, and to ask for his opinion on the proper role of the 9th and 10th amendments and the commerce clause in our constitutional scheme, the relationship between constitutional interpretation and stare decisis, and so on.

none of these questions, answered honestly, would necessarily reveal predict any outcomes, or reveal anything more than we learned about the present justices within a term of when they joined the court.

Posted by: joshua at July 22, 2005 12:29 PM | PERMALINK

What IS the deal with those little ships? I mean, am I the only one who thinks that's just amazing?

Posted by: Morris at July 22, 2005 07:23 PM | PERMALINK

And what about poor Nicky Hilton? Do people even bother to interview her any more? Does John Roberts feel sad that her 15 minutes seem to have expired?

Posted by: Armand at July 23, 2005 12:10 PM | PERMALINK
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