What could possibly disqualify John Roberts from interpreting the U.S. Constitution for the next decade or three? If history is any guide, he mostly needs to keep mum about any collegiate pot smoking, avoid unseemly hair-experiments on his chin, and put a cork in any strongly held opinions about the Jay Treaty.
Roberts is being described as a "rock solid conservative," a "Washington insider," "not always predictable," and (by the Volokh Conspiracy's Orin Kerr) "probably the best Supreme Court litigator of his generation…considered a total star within the DC legal community (on both sides of the aisle)." More good analysis and links to his decisions can be found at the Supreme Court Nomination Blog.
Will he be an ally of those who believe in limited federal government, sane interpretations of "interstate commerce," and a literal reading of "Congress shall pass no law"? For what it's worth, his name didn't come up in Reason's recent Supreme Court wish-list by 13 prominent libertarian-leaning thinkers.
But we won't know until he puts on the robes. Unless the Senate bucks recent tradition and asks about things more relevant than Roberts' video-rental habits. To encourage this, while still promoting the American value of confirmation entertainment, I propose the following questions:
1) What isn't interstate commerce? The disastrous Gonzales v. Raich decision, which Roberts' predecessor dissented from, interpreted the Constitution's Commerce Clause (which gives the federal government authority to "regulate Commerce…among the several states") as broad enough to allow for federal intervention in 100 percent local, non-commercial activity. The ruling exposed a split between Clarence Thomas and fair-weather federalist Antonin Scalia.
Whose side is Roberts on? Is limited government good for the boardroom, but bad for the bedroom and greenhouse? Does Congress need to justify meddling in the affairs of states and transforming law enforcement into a federal enterprise? Roberts' dissent in Rancho Viejo, LLC v. Norton gives some preliminary cause for hope; pinning him down on what Commerce doesn't allow could ease the still-smarting sting of Raich.
2) How much reverence should be given to precedence? Sandra Day O'Connor was the Court's swing vote; if he disagrees with her record, Roberts could change a lot of law.
3) Quick—Recite the Tenth Amendment. You never can be too sure.
4) Do you agree with United States v. Reynolds, and if so how do you square that agreement with the fact that the federal government, in successfully arguing for what was then a new right to keep secrets from the judicial branch, has been recently shown to have lied its ever-lovin' ass off? The Bush Administration, using post-9/11 National Security as its justification, is engaged in a deliberate campaign to expand the power of the Executive, at the direct expense of both the judiciary and the principles of open government. This will keep coming up, especially but not limited to the attempts at suppressing detainee-abuse images.
It will be bad enough if Roberts is overly deferential to Executive Branch power in the name of National Security, but forcing him to respond to direct evidence of how secrets have enabled lies and abuse will bring his principles and partisanship into sharp relief.
5) You're on a lifeboat, but it can only hold 8 of the original 10 amendments without sinking, killing your whole family. Which ones go?
6) Do you think the 5th Amendment right to a grand jury has been perverted over time to become an enabler of, and not a protection from, prosecutors gone wild? If not, read this, and explain.
7) What is your working definition of "public use," as spelled out in the Takings Clause of the 5th Amendment? The awful decision in Kelo v. New London, which just lost an eloquent dissenter, has expanded the 5th Amendment's "public use" requirement for eminent domain to now mean "private use that will help the public by squeezing more tax dollars out of the expropriated private property." Does that seem like a reasonable interpretation of the Constitution?
We've had 10 years now of a Republican Congress and a Republican-stacked Supreme Court. The Executive keeps gobbling more power and the Legislative keeps feeding Leviathan, while the Judicial ladles out a disturbing number of rubber stamps. It's probably too much to hope that Roberts will stand athwart illiberalism and yell "stop," but some pointed and/or weird philosophical questions might make him sweat, and conjure the unusual sight of legislators debating ideas. Unless they get those nannies to talk.