Friday, September 16, 2005

Judges at confirmation hearings don't like to discuss how they'd rule on some hypothetical case. There's a legitimate reason --- a similar case that actually did come before them might be different in some crucial detail, and they don't want to be bound by statements they made without knowing about that. But that's an excuse that doesn't apply to cases that have already been decided. So for those, they need other excuses.

At his confirmation hearings, Clarence Thomas weaseled out of offering an opinion on Roe v. Wade by claiming that he had never thought about it --- not even at the time the decision came down, when he was in law school. If he didn't care enough about constitutional issues then, or subsequently, to look into Roe, you'd think that by itself would disqualify him from his current job --- but evidently, a majority Democratic Senate disagreed.

John Roberts can't offer that excuse. At his confirmation hearings, he has proved, if nothing else, that he has followed the Supreme Court's work in great detail. He just won't say what he thinks of it, because... well, for some reason, he just doesn't want to. And so, reports the Times, many legal observers are as frustrated as the Senate's Democratic members themselves at his evasions.

But the Times also reports that there are things that he doesn't evade:

Judge Roberts provided substantial information, at least at the level of theory, about the right to privacy. He said it existed, located it in various constitutional provisions including the 14th Amendment and gave some examples of what it requires. He endorsed a 1965 decision of the Supreme Court holding that the right to privacy guarantees that married couples may use contraceptives.

But his adamant refusal to answer other questions frustrated Democratic senators and liberal scholars.

"From Bush v. Gore to the Second Amendment to separation of church and state to abortion," Erwin Chemerinsky, a law professor at Duke University, said of Judge Roberts, "he was masterful at saying a lot but avoiding answering the key questions."

So, he offers an opinion on the Griswold case, on regulation of contraception, but declines to state a view on Roe v. Wade, on regulation of abortion. And legal observers are frustrated by his vagueness on the latter issue.

It must be a sign of my naivete on these issues that I think he might have given them a hint.


Anonymous Anonymous said...

There's an old gag about a court case wherein counsel is trying to establish the exact nature of the relationship between a married man and an unmarried woman:

Q. Did you ever stay all night with this man in New York?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Chicago?
A. I refuse to answer that question.
Q. Did you ever stay all night with this man in Miami?
A. No.

12:46 PM  

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