Bench Memos

Questions, Good, Bad, and Indifferent

I’m blogging from Washington, D.C., site of the annual meeting of the American Political Science Association. On this, my first morning in town, in a city that is home to two great newspapers–one for each party!–the hotel where I’m staying (which will go unnamed, but think tasteless hamburger ads) brings me USA Today. Sigh.

Okay, I’ll read anything handy. On the op-ed page I find a box in which the editors have printed the questions various “experts” would ask John Roberts if they were on the Judiciary Committee. Seven questions in all, from five people, and only one and a half of them strike me as worth asking. Each question is followed by a paragraph from its author explaining why it’s such an important question.

The best question is from veteran Supreme Court advocate Alan Morrison, who wants to know “which opinions and which orders” Roberts would have joined in Bush v. Gore, and why. Excellent. That case revealed much about the thinking of all nine justices, and for those who recoil at the thought of inquiring about past cases that might be revisited, well, such a circumstance as the Florida recount controversy is unlikely to be repeated soon.

The second best question is from George Washington University law professor and all-around media guy Jonathan Turley, who wants to know if Roberts agrees with the Lawrence ruling overturning sodomy laws. But he spoils the question by beginning it this way: “Assuming that you believe that there is a constitutional right to privacy . . . ” But why assume that? If that’s an acceptable preface to the question, why not begin, “Assuming that there is a roving commission in the Constitution for judges to strike down laws of which they disapprove . . . “?

Tony Mauro of Legal Times wants to know whether Roberts–and not his clerks–will write his opinions. And he gets a second question, asking whether Roberts would favor “broadcast coverage of Supreme Court proceedings.” I assume he means TV cameras in the courtroom, since there already is “broadcast coverage” of the Court. Both questions are a waste of time. Does he expect Roberts to answer the first one by saying, “No, I’m looking forward to kicking back and making clerks do all the work like I did for Rehnquist years ago”? As for the second, it’s a typical journo’s question. But does anyone contend that the responsible performance of the Congress was actually improved by C-SPAN?

Marci Hamilton of Cardozo School of Law asks two questions. One poses the vague prospect–already ably debunked here by Gerry Bradley–of some conflict between what the law requires and the teachings of the Catholic church. The second aks for a largely vapid and predictable discourse on the meaning and value of the “rule of law.”

Saving the worst for last–as I do here–the newspaper gives us one question from the University of Chicago’s Cass Sunstein. The question itself appears harmless at first glance, asking what “weight” Roberts would give to the “original understanding” of the Constitution. But Sunstein defines that expression as referring to “the specific understandings of the people who wrote and ratified the founding document.” That adjective “specific” carries all of Sunstein’s bias here, since he appears to want us to think that on the “specifics” the founding generation was so much more retrograde than we progressive folks are nowadays.

What’s worse is Sunstein’s explanatory paragraph, in which he differentiates between good conservatives, who “dislike major changes in existing law,” as long as existing law is open to being changed a lot by liberal judges (think Lawrence again), and bad conservatives, who are “more radical” because they might think of reversing some of the gains made by the liberal agenda via the judiciary. This is well-known as the “ratchet effect”–the Left gets to change the Constitution, and “conservatives” must pledge to preserve the changes.

Sunstein gets the nod for the lamest, most transparently dishonest argument embedded in his question.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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