“Most opinion leaders and scholars think that asking a nominee to answer questions about a specific, already decided Supreme Court case is an appropriate line of questioning,” Senator Chuck Schumer (D., N.Y.) told a gathering at the National Press Club on Wednesday. I can’t vouch for Sen. Schumer’s contention that “most” opinion is with him, but, for what it’s worth, I think he’s right. And that Ramesh Ponnuru, similarly, is right.
Judge John G. Roberts Jr., or any nominee to the Supreme Court, should answer questions about important Supreme Court precedents. That includes, most prominently, Roe v. Wade. And the caterwauling to the contrary, most recently by Sen. John Cornyn (Tex.) and the RNC, is ill-conceived.
The core problem for the GOP and RNC lies in continuing to discuss Roe strictly in terms of abortion rights. Rigorously confining Roe as an abortion case, understandably, is the tactic of the Left, which favors judicial determinations over democratic rule. Nationally, the notion that abortion should be available within limits is more popular than the concept that we should be ruled by judges rather than ourselves. It thus makes perfect sense for the Left to try to own Roe and to demand that it be argued exclusively in terms of abortion. But conservatives, Republicans and classic liberals have no obligation to play into this strategy–as they invariably seem to do.
Roe is a transcendent decision. Far more than abortion, it is about defining the judicial task itself. Why should we be offended by a “litmus test” about such a thing? President Bush promised to appoint judges who would interpret the law as it was enacted and would not see their role as inventing (and, more importantly, imposing) new law–a job that belongs to the political branches who are directly accountable to voters. By that standard, Roe is a litmus test. Or at least it should be.
If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.
Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.
In fact, all the statement really means is that the decision whether and under what circumstances to permit abortion–like every other issue the Constitution does not speak to directly–should be in the capable hands of Americans and the politicians accountable to them, rather than the judiciary. It is baffling that, in an age of judicial excess, conservatives continue to slog away in the abortion box rather than offering a different, resonant way for people who care about self-determination to think about Roe.
I don’t much care what Judge Roberts thinks about abortion. If Roe were reversed tomorrow, there would still be plenty of abortion. But it would be regulated by the people, not the judges. I would need to care about what Judge Roberts thinks of abortion about as much as I currently need to care what Justice Ginsburg or Justice Scalia thinks the drinking age in Connecticut should be–which is to say, not at all, because it’s frankly none of their business. That’s not what we hired them for.
But I care deeply what Judge Roberts thinks of Roe–because I care deeply about how he perceives the task of judging on the nation’s highest court. If I were writing talking points for Ken Mehlman or Sen. Cornyn, I’d stop all this blathering about litmus tests and the purported impropriety of asking nominees for their views on prior cases for fear of prejudging future cases. A nominee’s statement of what he thinks of Roe, or Brown, or Miranda, etc., does not commit that nominee to rule a particular way in a future case. It does, however, give the public’s representatives in the Senate a fair insight about how nominees are likely to approach the judicial task. It gives them a discriminating appraisal with which to exercise their constitutional function in the appointments process. There is no point in having advice and consent if we don’t get that.
If the GOP and the RNC really want to advance the cause of fixing the proper role of the judiciary in our system, they should not be suggesting that Senators Leahy and Schumer are wrong for dwelling on Roe. They should instead be asking, very simply, why Senators Leahy and Schumer don’t trust the American people to regulate abortion responsibly.
And please, could we stop whining about Justice Ginsburg’s confirmation process? She got the fast-track. She shouldn’t have. She was asked relevant questions, but she was allowed to get away with not answering them. Republicans took the foolish position that judicial philosophy was out-of-bounds, and she was confirmed in near unanimity. Too bad. That was a mistake. But it’s over–she’s on the court. The lesson is that a mistake is not a precedent. A mistake is not something you are required to repeat. Because the Republicans mishandled the Ginsburg confirmation process does not impose on Democrats some equitable duty to reciprocate the error.
We should be fighting here over the merits of the answers, not over whether we should get the answers in the first place. We don’t have a country that is unanimous on the salient issues of the day, including the matter of how we should be governed. Why should we expect, much less think it would be healthy, to have a nominee who can get confirmed 100-0? Especially if, to do such an improbable thing, he needs to be shielded from telling us what he thinks.
Justice Ginsburg should have been made to answer the questions. Judge Roberts should answer the questions. And if we have a Democrat in the White House starting in 2009, that president’s nominees should answer the questions. Democrats should not, at that point, be given the benefit of an argument that, back in 2005, Republicans protected Judge Roberts from answering the questions.
–Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.