Roberts Should Keep Mum, Respectfully

Posted July 27, 2005 at 4:08pm

Soon, Judge John Roberts will be seated in front of the Senate Judiciary Committee for a hearing on his nomination to the Supreme Court. And so will begin the Senate’s role of “advise and consent.”

The 18 members of the committee are under no restraint concerning the kinds of questions they can put to the nominee. Anything from his personal background to his favorite color is fair game.

But Roberts should follow the path of earlier nominees and preserve his judicial independence as he responds to inquiries from the Senate panel.

He can expect a host of inquiries about positions he advocated as a special assistant to the attorney general, as counsel to President Reagan, as principal deputy solicitor general of the United States and as a private practitioner. He will also be asked about his opinions as a judge on the Court of Appeals for the D.C. Circuit.

In answering questions about his earlier career, Roberts should refer to Thurgood Marshall’s nomination hearing, when he was asked about quotes he had made as solicitor general concerning criminal procedure. Marshall said that his comments as solicitor general were just that, and not as a nominee to the Supreme Court. During the hearing, Sen. Edward Kennedy (D-Mass.) defended Marshall’s comments as solicitor general as appropriate, and further stated that as a nominee, he “had a different responsibility as far as commenting on these matters.”

Document requests aside, Roberts will likely handle questions concerning his past actions deftly because he was a paid advocate for his employer, whether the federal government or a client in the private sector. The pressure will come when he has to respond to inquiries on his judicial philosophy and current Constitutional issues from Committee members who want to discern if this nominee will carry an ideological bent to the court. Questions on Roe v. Wade and privacy will come at him from all angles.

I find it inappropriate for a nominee to answer specific questions about his or her legal thinking on Constitutional issues that may come before the court. An independent judiciary is essential, and requiring a nominee to answer how he or she would rule on a particular matter is akin to extracting a campaign promise for the position.

During his confirmation hearing, now-Associate Justice Clarence Thomas was asked almost 100 times directly and indirectly to share his views on abortion and Roe v. Wade. Thomas demurred each time with an explanation that outlined his need to remain impartial to this matter because the Supreme Court may well yet again consider it.

Later, Sen. Arlen Specter (R-Pa.), who’s now chairman of the Judiciary Committee, stated that Thomas “did not go to the ultimate question as to how he would decide Roe v. Wade, nor do I think he could reasonably be expected to do that. … [T]hat issue in my opinion can be answered only in the context of the specific case on the facts, briefs, argument, discussion among justices and then a decision.”

Sen. Joseph Biden (D-Del.), former Judiciary chairman, stated in 1992 that he expects future nominees to fully answer his questions or else he will oppose that nominee — with a caveat. He may still support that nominee if he is “otherwise assured about a nominee’s approach to the area in question.” This Biden caveat is quite reasonable and I would urge other members of the Judiciary Committee to pose their questions in a manner that would help them understand a nominee’s “approach” to constitutional issues.

Associate Justices Ruth Bader Ginsburg and Stephen Breyer both refused to reveal their legal thinking on any issue that may come before the court during their confirmation hearings. Ginsburg said she would provide “no hints, no forecasts, no previews” of how she might rule, and she adhered to this statement. Breyer did much the same.

This, of course, is not a new phenomenon for Supreme Court nominees: They have all declined to answer ultimately on their legal thinking with regard to constitutional issues that may come before the court.

In 1959, a point of order was raised on the appropriateness of questioning a nominee about prior Supreme Court decisions. The Committee’s chairman at the time, Sen. James Eastland (D-Miss.), overruled the point of order. He said the Committee would follow this rule: “If the nominee thinks that the question is improper, that he can decline to answer. And when he declines, his position will be respected.” To my knowledge, that 1959 ruling from the chairman has not been challenged.

Of the nominees rejected by the Senate in its role of advise and consent, I cannot recall any instance in which the Senate failed to confirm solely because a nominee refused to answer questions with specificity as to how he or she might rule while sitting on the court

By all accounts, Roberts is a man of keen intellect, proper judicial temperament, integrity, compassion and other qualities that make for an ideal Supreme Court justice. At this point, his confirmation appears to be a foregone conclusion.

The members of the Judiciary Committee and the American public can expect his nomination hearing to resemble an advanced class in Constitutional law. That is to say his answers will reflect current Constitutional law as handed down by the Supreme Court and not as he thinks it should be. When pressed on his view of past Supreme Court rulings or how he might rule on similar cases, Roberts should stick to the mantra of “equal justice for all,” applaud the virtues of “stare decisis” and quote Ginsburg: “No hints, no forecasts, no previews.”

Thad Strom, the vice president of Congressional relations with the lobbying firm Parry, Romani, DeConcini and Symms, is a former chief counsel and staff director of the Senate Judiciary Committee. He was also chief of staff to the late Sen. Strom Thurmond (R-S.C.).