Hearings Should Focus on Roberts' Judicial Philosophy
The intent of judicial confirmation hearings should be to judge qualification. And I think qualification is best judged not through demanding opinions on specific issues but by asking questions about a nominee’s overriding philosophy. So, what is Roberts’ philosophy?
Writing for The New Republic, William J. Stuntz questions if Roberts has much of a judicial philosophy. Stuntz sees Roberts as being too much like Rehnquist who Stuntz thinks votes his instinct rather than following a consistent judicial philosophy.
It is all too tempting for Supreme Court justices to vote their instincts and tell their law clerks to come up with the rationales. If Arlen Specter, Patrick Leahy, and their colleagues want to do justice to the next justice--and to the people the next justice will serve--they would do well to skip all the up-or-down questions. Instead, ask Roberts what law is about, what constitutional law is about, and what the difference is. Ask him when the Framers' intent should govern and when precedent should control. Ask him what might lead him to change his mind--not about bottom lines, but about his preferred theories.
I would have to agree. I think it’s vital that Roberts be asked whether he is a strict constructionist or an originalist or a believer in the living Constitution or something in between or something different all together. What system of reason Roberts will use is much more important than how he might rule on a hypothetical case. So too should we ask what respect he’ll give to precedent—even those he thinks may have been improperly reasoned. And does he believe in incremental reversal of precedent (like O’Connor did and like Rehnquist often does) or does he believe in sweeping reversals like Scalia and Thomas often argue for?
A nomination to the Supreme Court is about so much more than one possible case or even one area of law. It’s about whether a nominee’s overriding judicial philosophy is comprehensive, intellectually defensible and acceptable to a majority of Americans.
With a career spent arguing cases for clients, Roberts has not built up much of a record that clearly reveals his personal judicial leanings. Finding out more about his philosophy should be job number one during the confirmation hearings.