David Limbaugh

I may be going against the conservative grain here, but I am not as bothered by the prospect of questions from Senate Judiciary Committee members seeking to determine how John Roberts' judicial philosophy might guide him in considering certain specific questions of constitutional law, including abortion.

I certainly agree that judicial nominees should not telegraph how they intend to vote on a particular case that is either before or on its way to the Court, but I think both sides have used this more as an excuse to shield their respective nominees.

There are limited other ways to determine a nominee's judicial philosophy: anecdotal evidence, written opinions or briefs, and scholarly legal writings. Where Judge Roberts is concerned, there is a dearth of available information in most of these areas.

Even in the case of a judge who has authored a voluminous library of opinions, we may not glean all we need to know about his judicial philosophy specific to the Supreme Court in that, by definition, he will not yet have served on the high court.

Judge Roberts, as fate would have it, has expressed his opinion that Roe v. Wade was wrongly decided, but he did so, as but one member of an appellate advocacy team in the process of zealously representing a client.

To further cloud the issue, he told senators during his 2003 confirmation hearing that Roe was "the settled law of the land" and "there's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."

Given that he was being considered for a position on a lower court, not the Supreme Court, all we can infer from his statement is that he was simply reciting the truism that even originalist judges on lower courts are honor bound to follow Supreme Court precedent. It doesn't tell us whether he believes the Supreme Court is also hamstrung by its own "settled" precedent in Roe.

Thus, I think it's appropriate for senators to inquire into the nominee's general judicial philosophy, such as the Court's proper role in the constitutional separation of powers framework, and his views on specific constitutional provisions and issues.

To me, there is nothing wrong with asking Judge Roberts, "Do you believe the Court should see itself as result-oriented: establishing rights and remedies to address perceived wrongs, even if there is no reasonable constitutional authority to do so? Or do you believe, as you seemed to reveal in the now famous French fry case, that the judiciary should be passive and that no matter how great the perceived injustice the Court must not intervene to correct it in the absence of a sound constitutional basis for doing so?"

David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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