Tuesday, Steve Presser and I concluded our initial love fest in basic agreement that the nomination of John Roberts presented an easy case for confirmation. On this point, I am heartened to report that my own liberal colleague Geoffrey Stone reached the same conclusion when he urged his colleagues on the far left to throw in the towel on the ground that Roberts was not the incarnation of Justices Scalia and Thomas.
Nonetheless the drumbeat to first undermine, and then kill the nomination continues apace. Yesterday morning�s entry from The New York Times was a column entitled �Casing John Roberts�, in which Vikram David Amar urges that the Senate put hard questions to Roberts on a range of issues that go from affirmative action, to late-term abortions, to cruel and unusual punishment, to the display of the Ten Commandments and the scope of sovereign immunity. Of course another commentator could easily find five other hot-button issues on which to dwell.
But again, what are we to make of these protestations? The most obvious point is that no liberal interrogator can claim to sit on that magic podium that makes him fit to judge all lesser human beings. The second point is that the discussion of any of these issues in depth could consume the entire hearing without coming to any conclusion. Certainly on this score no one should trust Amar�s formulation of the questions, nor his desired answers to them.
Here is but one example. How do we think about Grutter and affirmative action? The most obvious point is that Justice O�Connor�s purported use of the strict scrutiny standard to validate the practice was something of a joke. Why should she take the University of Michigan at its word when it says that it hopes the program will be gone in 25 years? That doesn�t make the decision wrong, but it does call into the question the use of the strict scrutiny standard. But when that standard is relaxed, then what happens to cases in which a state wants to segregate high schools by sex in order to promote discipline and learning? We can argue until the cows come home how this should be resolved. But there is no way that questions on this, or any other case by a panel of senators, will be able to steer clear of future business before the Court.
And why do we want to do this? Not in the hope that liberal democrats will find something to cheer about in Roberts. They just hope that he will slip up under pressure. We don�t need this ordeal. And we don�t want a democratic nominee to face the same questions from stony-faced Republican interrogators who will expect a very different set of answers.