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September 13, 2005
Stop Ducking in Public
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Erwin Chemerinsky is a Alston & Bird professor of law and a political science professor at Duke University. |
John Roberts repeatedly has refused to answer questions about constitutional protection for abortion, about the scope of privacy protections, about the constitutionality of term limits, about gender equality, and other topics. He says that he cannot express views about matters that will come to the Court. I want a senator to ask him why not?
There are a few possible answers. One is that he has no views on the subjects. But that is not credible since he wrote briefs in almost all of these areas taking consistently conservative positions. Another possible answer is that his views on the constitutional issues have no bearing as to how he will vote on the Court. But no one believes that. A justice's beliefs about whether Roe v. Wade was rightly decided or whether equal protection applies to gender discrimination very much determine how he or she will vote on the Court.
Roberts most likely answer is that it would compromise his impartiality if he told his views. But this, too, is just wrong. We all know Antonin Scalia's and John Paul Stevens' views on abortion, but no one suggests that they must recuse themselves for bias. The fact that a Justice has views does not undermine impartiality because, of course, they all have thoughts and positions. Pretending that the judge is a blank slate doesn't make the judge impartial. As a litigant, I'd much rather know the judges' views than pretend that they don't exist.
Senate Democrats must clearly communicate that Roberts' failure to answer questions is a basis for opposing his confirmation. Democrats need to say that they will not confirm Roberts based just on faith that he won't be the fifth vote to overrule Roe or end affirmative action or allow dramatically more government aid to religion.
Posted at September 13, 2005 01:34 PM