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It is hard to top the advice of former Attorney General Nicholas Katzenbach. In 1987, he told the Senate Judiciary Committee deliberating on the nomination of Robert Bork: “Were I in your position . . . the central question I would be asking is this: Is Judge Bork a man of judgment?” How should the Senate determine whether Judge John Roberts Jr. is a man of judgment? Asking him about his judicial philosophy is a fine start. In his earlier confirmation hearings for his D.C. Circuit seat, Judge Roberts said that he didn’t have a “comprehensive philosophy” of constitutional interpretation. That’s good: Judgment requires a willingness to change one’s mind, and a judge who has a comprehensive philosophy is less likely to be open-minded. And reliance on an overarching constitutional theory — originalism, textualism, or any other fancy label — can make judging seem like a mechanical exercise, and thus cause judgment to atrophy. Grand constitutional theories also produce a false sense of certainty, undermining the second prerequisite for good judgment: humility about the correctness of one’s own views. Judge Learned Hand described the “spirit of liberty” as “the spirit which is not too sure that it is right.” A judge who is sure that he is always right can easily become a tyrant. To probe Judge Roberts’ humility, the Senate should ask him his view of precedent and stare decisis. Adherence to earlier decisions reflects an admirable judicial humility. A judge who has a cavalier attitude toward precedent is a judge who thinks that he is better or smarter or less fallible than those who came before him. But if good judges need the humility to recognize that they might be wrong, they also need the courage to act in the face of that recognition. And the senators have an easy way to test Judge Roberts’ courage: They should ask him to state his views on the controversial topics that divide the country. He can — and should — respond that his views might change or might differ depending on the circumstances of each case, but he should be forthright in stating his current positions. If he demurs, we should conclude that he does not have the courage to risk being rejected by the Senate. An open mind, a sense of humility, and courage: If the Senate determines that Judge Roberts lacks any of these, it should reject him on the ground that he is not a man of judgment.
Suzanna Sherry is the Cal Turner Professor of Law and Leadership at Vanderbilt University Law School and an author of Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (2002) (with Daniel A. Farber).

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