Etalkinghead

There’s little chance the Senate will reject John Roberts as Chief Justice of the United States, so watching the Judiciary Committee’s opening statements yesterday seemed somewhat beside the point. The predictable back-and-forth between Republicans and Democrats, and Judge Roberts’ own careful statement at the end, did little more than illustrate contending political-legal philosophies without delving deeply into their rationales or consequences.

The Republicans are mostly right to insist that Roberts should not indicate how he would vote on specific future cases. No decent judge can say how he our she would rule in the future, because each case is specific to particular facts. Yet they’re wrong to insist that Roberts cannot explain his general approach to controversial issues. The Democrats just have to ask the right questions.

For example, Roberts won’t say how he will vote on the next abortion case, whether he thinks Roe v. Wade should be overturned (as some conservative justices maintain) or its precedent affirmed (as other conservative justices conclude). But he should be able to answer this question: Judge Roberts, was Roe v. Wade wrongly or rightly decided, and why?

His answer is no guarantee of any future vote, but at least it would give a sense of how he approaches the abortion/privacy divide. Similarly, questions about how he would have voted in other specific cases would explain his approach to precedent, to the tensions between state and federal power and between legislative and executive branches of government, to the debate between those who think the Constitution can help change society and those who think it should preserve the status quo.

Republicans will claim that even this sort of question goes too far, that, for example, indicating his agreement or disagreement with Roe v. Wade might “pre-commit” Roberts to future stances. This objection makes little sense, however. We already know, for example, what every sitting justice thinks about Roe, because they have told us so in more recent cases. No one suggests that Antonin Scalia should recuse himself from the next abortion case because, given appropriate facts, his decision is entirely predictable based on his past rulings.

This kind of discussion could make the Senate hearings more targeted than yesterday’s generalities. More interesting, anyway.

————–

Dennis Fox is emeritus associate professor of legal studies at the University of Illinois at Springfield. See his academic and political essays on psychology, law, and justice.