Nominee should give us a piece of his mind
By Vikram David Amar
In its confirmation hearings, the Senate should ask Judge John G. Roberts to analyze specific cases that have come before the Supreme Court in the past. That is the only way to get a meaningful sense of where he may move the nation's jurisprudence.
And yet many senators have said that while they may properly ask a nominee about his general approach to judging and interpretation, they should not ask for detailed views about actual cases, because in doing so they will force the nominee to prejudge issues that may come before him later.
This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.
Asking the nominee to critique past cases is as legitimate as asking a job candidate to imagine how he or she would have handled situations that faced employees in the past. After all, a justice's job is to decide and explain cases, while a nominee's job is to give senators information about the kind of justice he will most likely be.
The nominee's candid assessments of previous decisions are similar in kind to the written opinions, dissents, law review articles and speeches from which a sitting justice's record can be examined, and that is exactly the sort of material the Senate needs in order to make a fair and well-informed decision.
When William Rehnquist was being considered for chief justice, his earlier writings as an associate justice were fair game for questioning him. His writings, and those of other justices, are equally fair game for questioning Roberts.
Turning, then, to the relevant specifics, surely Roberts must explain his own judicial writings, including his controversial opinion that Congress lacks the constitutional power to enact the Endangered Species Act. As for Supreme Court rulings, senators should spend August compiling their short lists of cases to bring up at the hearings.
Here are five recent blockbusters that make mine:
If senators cannot unearth and examine Roberts' specific views about these and other actual cases, we might as well not waste time on a hearing.
Vikram David Amar, a former clerk to Justice Harry Blackmun, is a law professor at the University of California, Hastings Law School. He wrote this commentary for The New York Times.
