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The Sacramento Bee

How to Judge A Judge

Justice nominee John Roberts must answer questions
on philosophy but needn't offer opinions on cases.

July 31, 2005

With the president's nomination of D.C. Circuit Court Judge John G. Roberts Jr. to replace Justice Sandra Day O'Connor, the U.S. Senate has begun a serious and historic debate that will have profound consequences on the lives of all Americans.

O'Connor played a pivotal role, often casting the deciding vote on a sharply divided court. The Senate has not voted on a Supreme Court nomination in more than a decade, and this appointment is the most critical in a generation. It not only will determine the legacy of this president but also could impact the course of the nation for generations to come.

The process the Judiciary Committee goes through when evaluating a nomination is even more important when the individual is being considered for the Supreme Court. The Supreme Court is unique in its role as the final arbiter, setting standards for all other federal courts, and it may revisit questions of law that it has already ruled upon.

It is, as Alexander Hamilton wrote in Federalist 81, "to be one court of supreme and final jurisdiction." As such, the Supreme Court's rulings impact what laws Congress may enact, what actions the executive branch may take and what individual constitutional rights supersede any governmental action. With the stroke of a pen, a justice may affect millions of lives.

Given this profound impact, I will be looking to ascertain Roberts' judicial philosophy on when precedent can and should be overturned, what is the proper balance of power between the three branches of government and what are his views on individual rights both enumerated and implied in our constitution.

Fundamental questions of law will be affected by his responses to these inquiries, including:

* Whether the court will continue to respect a woman's right to make reproductive choices

* What is covered under the sphere of privacy

* Whether the federal government may intrude on fundamentally personal decisions regarding the end of life

* Whether diversity in our schools continues to be recognized as a compelling state interest

* What is the proper equilibrium between religious beliefs and our public institutions

His judicial philosophy will have broad implications for our national economy, the ability of states and localities to seize private property or infringe upon its uses, the president's authority to conduct the war on terror and the due process rights of enemy combatants and detainees.

Many Americans may not appreciate the impact of Supreme Court decisions on their daily lives. However, its rulings directly affect all of us in fundamental ways. And it is essential that the Senate be able to ascertain Roberts' judicial philosophy so that we may make an informed decision about his nomination.

Given that most of Roberts' legal career was as a private or government lawyer, it will be important for the committee to determine what documents may be necessary to examine from his years in the Reagan White House and as a political appointee in the Bush Administration.

In addition to examining his legal writings, the committee will need answers to important questions. Much debate already has occurred regarding what questions the Senate may ask or, more specifically, what questions Roberts should answer. While polls indicate an overwhelming number of Americans believe he should answer questions on his position on Roe v. Wade, polls do not dictate the process.

Instead, judicial ethics and canons, as well as recent Supreme Court cases provide important guidelines that should direct our standards of what may be asked, and what should be answered.

Clearly any candidate to the Supreme Court must possess a mind open to persuasion and must not make any pledges or promises on how they would rule on a specific case. However, candidates for the court should explain their judicial philosophy as it pertains to cases and legal reasoning already decided and widely debated.

In fact, in a 2002 Supreme Court decision written by Justice Antonin Scalia, the court argued that "before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon." In quoting Chief Justice William Rehnquist, the decision further stated, "Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so."

It is not only reasonable, but imperative for the Senate to seriously consider Roberts' nomination as well as thoroughly examine his judicial philosophy. This is a historic time for our country. With the fundamental freedoms and rights of all Americans at stake, it is imperative that the Senate and the public fully examine and evaluate the nominee seeking to join our most supreme court.

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