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Instead of thinking about a Supreme Court confirmation hearing as just the investigation of a particular nominee, the Senate should use the upcoming hearing on John Roberts Jr. as a rare chance to help direct the path of constitutional law — by instructing the other eight justices about Congress’ sentiments on weighty legal matters. Since the last confirmation hearing in 1994, shattering changes have upset the nation’s legal and moral framework, from innovative and scary medical technology to the horrible attacks of Sept. 11. The justices will confront these questions with a limited palette of answers at their disposal. Prior legal decisions can take the Court only so far in a period of constant change. Some justices will look to academic commentary, others to practices in state or even foreign governments. Some may look to their friends and family. But, for a while now, the justices have not been able to look to Congress. Senate confirmation debates have been geared toward character assassination instead of charting a new legal course. This is unfortunate, and not only because our Founders presumed that all three branches would be answering constitutional questions. The relatively cloistered justices are not as structurally poised to answer questions about popular sentiment and contemporary values as the elected senators. Democrats for years have insisted that the Constitution is “living.” If so, then it’s time for the Senate to help fill in the details about our Constitution’s life changes. If, for example, a vast majority of senators do not want Roe v. Wade overturned, saying so could be enormously important when the Court confronts its next abortion cases. Indeed, the outpouring of support for Roe in Justice David Souter’s 1989 hearings could very well explain why the Court, led by Justices Sandra Day O’Connor, Anthony Kennedy and Souter, reaffirmed Roe in 1992. The views of the Senate would not, of course, bind any justice in any particular case. A justice might disregard them; only look to them when interpreting clauses that invite consideration of contemporary values (“cruel and unusual” punishment, “due process of law,” etc.); or engage in any number of other complicated treatments. But providing Senate views would at least be an attempt to correct the Court-centric nature of constitutional law in recent decades. That project has been so successful that many senators and academics don’t remember the grand tradition of legislative constitutional interpretation. There is much for both parties to love and hate here. While Roe may be strengthened, a majority of the Senate may reject the Court’s recent views on “partial-birth” abortion or the Kelo decision permitting government to take private property for economic development. Regardless of how specific issues come out, however, a process geared toward listening more to legislators is the right one. It is often said that the great danger of the Supreme Court is that it can be “activist” and strip the power of decision from the legislature, be it on “partial-birth” abortion or the Violence Against Women Act, by declaring statutes unconstitutional. The senators have the chance now to explain whether they think these and other cases were rightly decided. Such a process will help not only our nation’s newest justice-to-be but the sitting members of the Court and the country as a whole. Neal K. Katyal is a professor of law at Georgetown University Law Center.

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