Sen. Joe Biden (D-Del.) has just finished questioning Chief Justice nominee John Roberts, including some questions about his views on previously-decided cases. And, unfortunately, Roberts refused to answer those questions.
I’ve made clear on previous occasions that I have no brief against Roberts, and that in some ways I think he’s the best we lefties can expect from President Bush. I defended Roberts against NARAL’s ad, which I thought was unfair, and I have urged those who might be reflexively opposed to Roberts to think carefully before jumping to conclusions. Nonetheless, I do think that he has an obligation to answer questions about previously-decided cases (see this article by Professor Vikram David Amar for a lengthy and convincing explanation as to why). There’s an important distinction here, by the way, between "do you think a previously-decided case was correctly decided," and "do you think the previously-decided case should be overruled." I don’t think nominees have to, or even should, answer the latter question – that is tantamount to prejudging an issue that could well come before him. But the former question is a perfectly legitimate way of inquiring into a nominee’s judicial philosophy. Roberts’s failure to answer these kinds of questions is troubling indeed.
I know that Sen. Schumer (D-N.Y.) is planning to ask very similar questions. If Roberts again absolutely refuses to answer these questions, I would somewhat reluctantly conclude that he has failed to respond to Senators’ legitimate inquiries. And I would further, somewhat reluctantly, conclude that the Senate Democrats would be justified in finding Roberts’ failures to be an "extraordinary circumstance" that would justify a filibuster. Between the Bush administration’s refusal to release the documents from Roberts’s time in the Solicitor General’s office and his refusal to answer legitimate questions about his views, the Senate would have been deprived of a fair opportunity to find out who this guy, who may well sit as Chief Justice for 40 years, is. That is not how the system should work, and Democrats would be justified in insisting that it not, in fact, work that way.
UPDATE: In a colloquy with Sen. Feingold (D-Wis.), Roberts was asked about the infamous Korematsu case, which upheld the exclusion of persons of Japanese ancestry during World War II. Feingold asked if he thought Korematsu was wrongly decided. Roberts couldn’t manage to say that it was – he indicated that it is a decision that has not survived the lessons of history well, noted that it has never been overruled, and that it ranks with Plessy v. Ferguson and Dred Scott with the Supreme Court’s worst decisions – but he never actually said it was wrongly decided. Not looking good.
I’d like him to answer in more detail on Korematsu. I’d like to hear him say that that case was wrongly decided, but I’d settle for knowing what he thought of its reasoning.
I hope someone asks him about Mihos
Go Roberts go…and then Bush gets another appointment….YES. The Kennedy’s, Bidens & Schumers look so angry and mean-spirited; they look and sound foolish.
As opposed to Senator Coburn, who looked so professional doing his crossword puzzle during the hearings.
I have to agree somewhat with John. Regardless of the points they are making they, Kennedy and Biden, aren’t playing well on tv.
I think its ridiculous that Roberts can hemm and haw over the internment of Japanese Americans. The reason it was WRONG to intern those citizens is because the government was holding people in detention without any evidence other than their ancestry.Had they come with a list of people who, through their actions, made them suspect to a specific crime, and asked to imprison them with formal charges, then it would have been legal. Of course, almost none of the interned citizens qualified for that, because none were accused or judged past their nationality. If in a murder investigation today, you asked for a search warrant from a judge, and your reasoning was ‘this person has the same ancestry as some other bad people we suspect of a crime’, the judge would laugh the warrant out of court. The idea that a seasoned lawyer like Roberts can’t argue that is ridiculous.
EdDavid , law scool question below for Ed.Factswhat if the murder suspect was from that island in the south pacific where the crew from Mutiny on the Bounty ended up? The island exists today. It is part of New Zealand.There are less then 150 people living there. They are all related. Much incest. Just had rape trial there that got some international publicity.Suppose this island fell under U.S. law.What if there was a murder and the police thought it was a person, they don’t know who, from the island was the murderer. What if a DNA test from any islander could show murder was islander or eliminate islander.Question:Would warrant for a random islander’s dna for testing purposes be constitutionally acceptable?