TCS Daily

Ask Judge Roberts

By Pejman Yousefzadeh - August 4, 2005 12:00 AM

As I have previously put forth, there exists recent precedent militating against asking a Supreme Court nominee such as John Roberts close questions about how he might adjudicate certain cases. That precedent is entirely justifiable as well, given the need of judicial nominees to keep from prejudging cases that may come before them. A judge is expected by Canon 5A3(d) of the Model Rules of Professional Responsibility to refrain from making "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (Emphasis added.)

Obviously, some senators weighing the nomination of Judge Roberts to the Supreme Court want to ask him about how he might rule in certain cases -- hypothetical or not. They run the risk of inviting Judge Roberts to violate the Model Rules and to thereby cast doubt on his impartiality in the event that he is confirmed as a Supreme Court justice and confronted by the cases -- real or hypothetical -- those Senators asked him about.

I hope that all senators will respect Judge Roberts's obligations under the Model Rules -- just as they respected the obligations of Justice Ruth Bader Ginsburg when she was being considered for the Supreme Court seat she currently holds. But I am realistic enough to know that there is, at the very least, a distinct possibility that Judge Roberts will, in effect, be asked to prejudge a whole host of real or hypothetical cases that may land in the Supreme Court docket with him as an associate Justice.

I'm also realistic enough to know that these questions will largely revolve around the issue of abortion. No surprise there -- after all, abortion has been portrayed as the ultimate hot-button issue for years and is among the most widely discussed subset of constitutional controversies in and discussion of the Supreme Court's current and possible jurisprudence.

But just because it has been a traditionally hot-button issue does not mean that it is the most pressing issue around. Indeed, when one considers how the abortion debate might play out even if pro-life advocates critically influence the Supreme Court's jurisprudence, it becomes at least somewhat difficult to justify all of the attention paid to the issue. To be sure, abortion is an important topic to discuss. But that doesn't mean the subject matter hasn't been hyped beyond proper proportions.

To illustrate, let's consider an incredibly unlikely scenario. Let's say that tomorrow - I know, the Supreme Court is currently in recess until the first Monday in October, but just go along with me here -- the Court decides that abortion is no longer a constitutional right. Many people are led to believe that this will dawn a terrible new era -- the era of back-alley abortions that are risky and life-threatening to the mother. In this nightmare scenario, there would be nothing that abortion rights advocates could do to re-establish the right to an abortion until and unless the Supreme Court decided to change its viewpoint anew on the issue of abortion rights -- either through a change in outlook among the existing justices or through a change in personnel among the members of the Court.

In fact, even our hypothetical dream scenario for pro-life advocates would not be enough to settle the matter. Any decision by the Supreme Court to eliminate abortion rights would lead to states taking the lead in settling the issue of abortion through legislative action. This can be done through the passage of ordinary legislation, or it can be done through the creation of a state constitutional guarantee enshrining abortion as a right in a particular state. In such a situation, abortion would no longer present the Supreme Court with a federal question, meaning that the Court would not have jurisdiction to strike down laws legalizing abortion in a particular state. No less a pro-life justice than Antonin Scalia has said so, and other conservative adherents of federalism would be hard pressed to disagree.

If we really want to raise a hue and cry about current legal arguments and how Judge Roberts might rule on them, we could do better than to focus obsessively on the abortion question. We could focus instead on the consequences of the Supreme Court's recent ruling in Kelo v. City of New London. We could talk about the fact that the Court's decision in Kelo ends up hurting poor people. We could talk about the eminent domain abuse that is to come as a result of the ruling. And we could talk about how we might possibly restore some sanity to the Court's takings jurisprudence in light of the fact that the Court's decision in Kelo reveals a warped and skewed jurisprudence that for some reason pays deference to a legislature's interpretations of the law -- instead of that of the judiciary's, as it should -- and that protects some property rights but not the most essential ones.

Again, I think that Judge Roberts should not be asked to prejudge cases. But if we have to ask him to do so in the coming confirmation hearings before the Senate Judiciary Committee, perhaps we could ask him about cases that are actually pressing and where solutions to what is commonly seen as a poor decision by the Supreme Court are only now being grappled with.

Or we could just revert to the old standby of fretting about abortion. That's a tried and true method with which we can garner attention and controversy; even if the controversy may be significantly overblown.


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