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