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By today, Supreme Court nominee John Roberts Jr. was supposed to be answering the questions of Senate Judiciary Committee members as part of his confirmation hearing to replace Justice Sandra Day O’Connor. Instead, because of the death of Chief Justice William Rehnquist on Saturday, and the swift decision by President George W. Bush to put Roberts in the chief justice’s spot instead, the Roberts hearing has been put off until Monday. But when the hearing finally gets underway, the questions will likely be the same, and the dilemma for Roberts will be the same, though possibly more urgent: how candid should he be about his views on the law? It’s a crucial decision for Roberts to make. Senate Democrats will be insisting on as much candor as possible, while Republicans hope and expect Roberts will stay out of trouble by invoking a previously unheard of doctrine called the “Ginsburg precedent.” In anticipation of a reticent Roberts, conservatives offered evidence of what the Federalist Society said was the “vast number” of times Clinton nominee Ruth Bader Ginsburg declined to answer substantive questions during her 1993 confirmation hearing. Liberal groups including the American Constitution Society fired back, documenting all the moments when Ginsburg actually answered questions “candidly and at length.” Sen. Charles Schumer, D-NY, gave a speech last week debunking the conservative version of the Ginsburg precedent, warning that if Roberts invokes it, it will sound more like taking the Fifth. On the other side, former Republican Attorneys General Edwin Meese III, Dick Thornburgh and William Barr, among others, wrote to the Judiciary Committee reminding members that Ginsburg said during her hearing that she would give “no hints, no forecast, no previews” of how she might vote on future cases. But Ginsburg is far from the only nominee who said little — or a lot, depending on which version you believe — to the assembled senators reviewing a Supreme Court nomination. During the 1986 cakewalk enjoyed by Justice Antonin Scalia, the late Sen. Strom Thurmond asked him a softball question about the meaning of Marbury v. Madison, the 1803 decision that declared the Court’s power to review acts of Congress. “I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison,” Scalia said coyly. More famously, nominee Clarence Thomas in his 1991 hearing denied ever having discussed Roe v. Wade as a law student. Few believed him, but it may have been a safer answer than if he had been more candid. All recent nominees, in fact, have declined to answer questions that they or their handlers thought would get them in trouble. But they also have yielded just enough information to give the media something to chew on and give senators a feeling of accomplishment. Nominee David Souter in 1990 probably gave Sen. Herb Kohl, D-Wis., more than he expected when he asked Souter an unusual question: How he thought his predecessor, William Brennan, Jr. would be remembered. Souter replied that Brennan would be remembered as “one of the most fearless, principled guardians of the American Constitution that it has ever had and ever will have.” In retrospect, Souter’s fervor in praising the liberal lion might have been an early signal that Souter was not the conservative that Republicans hoped he would be. If Roberts wants to be more candid next week than some past nominees, he would have ample precedent from both ends of the spectrum. In 2002 Scalia — the same justice who would not discuss Marbury v. Madison — took a more expansive view in his ruling in Republican Party of Minnesota v. White. That decision dealt with what judicial candidates can and cannot say during a judicial election, but Scalia’s words resonate in the context of appointed candidates. “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason,” wrote Scalia. “For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.” Indeed, Scalia added, “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,” since it would indicate that the judge had not thought much about the law. A more recent example of judicial candor came just last month from the more liberal Justice John Paul Stevens. In a speech before the Clark County Bar Association in Las Vegas Aug. 18, Stevens reviewed Supreme Court decisions from last term that produced “results that I consider unwise.” They were also, he added, decisions he either wrote or joined. Two of the cases he mentioned were ones he actually wrote: Kelo v. City of New London and Gonzales v. Raich. In the controversial Kelo case, Stevens upheld the power of the town of New London, Conn., to take private property by eminent domain for private development by others, a result he said was “entirely divorced from my judgment concerning the wisdom of the program.” Likewise in Raich, Stevens said he agreed with “the policy choice made by millions of voters” in California to legalize the medical use of marijuana. Yet he wrote an opinion favoring the federal anti-drug laws that supersede the California initiative. As a result of his speech, the public now knows what Stevens personally believes about eminent domain and medical marijuana. Yet if those issues come to the Court again, would anyone suggest that Stevens could not rule impartially? By the same token, what would happen if Roberts were just as candid and told the Senate Judiciary Committee what he really thinks about issues large and small? Then the question would be whether he, like Stevens, could set aside those views as a Supreme Court justice. And that may be the most important and difficult question of all.

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