Chief Justice nominee John Roberts
"Look, it's kind of interesting, this Kabuki dance we have in these hearings here," he vented, "as if the public doesn't have a right to know what you think about fundamental issues facing them. There's no . . . possibility that any one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe."
Surely, Biden continued, this wasn't what the Founders had intended. Had they said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president, or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life. . . . And you know what? He doesn't have to tell us anything. It's OK, as long as he is' -- as you are -- 'a decent, bright, honorable man. That's all we need to know."
Roberts's answer was predictable. "Judges don't stand for election," he primly told Biden. "Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or . . . to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court."
Well, yes. Judicial nominees can't campaign for confirmation by guaranteeing outcomes in specific cases. In that sense, of course Roberts was right. But was Biden wrong? After all, our democratic republic is founded on the principle that those who govern must be accountable to the governed. Where is that accountability when it comes to the Supreme Court?
I will stipulate that Biden's demand for Roberts to be more forthcoming was not motivated by any deeply held principle. Like other Democrats, he had no objection when President Clinton's Supreme Court nominees declined to answer questions. Indeed, when Ruth Bader Ginsburg came before the committee in 1993, then-Chairman Biden emphasized that she had a right not to answer questions on any issue that might at some point come before the court.
He was wrong. Ginsburg should have been made to answer relevant questions. Roberts should have been made to do so as well.
As chief justice, Roberts is likely to have more of an impact on American law and life than any of the senators voting on his nomination. From the power of presidents to hold terror suspects indefinitely to the power of Congress to override state law, from the execution of murderers to the recognition of same-sex marriage, from affirmative action to abortion, Roberts and his fellow justices will shape national policy for years to come. Their decisions will be binding not only on the litigants before them, but also, by longstanding tradition, on the other branches of government. There is no appeal from a Supreme Court ruling. When the court strikes down federal and state laws, federal and state lawmakers must accept its decisions.
There is little in the Constitution to check and balance such immense authority. All that can keep the court answerable in some way to the electorate is the fact that the political branches give them their jobs -- the president appoints federal judges; the Senate confirms them. While delinquent judges can be impeached and removed, there hasn't been a Supreme Court impeachment in 200 years.
So the modest leverage of the nomination process is all we've got to remind the justices that they are public servants who must answer, however indirectly, to the people, not philosopher-kings to whom the people must bow. But if nominees are permitted to keep their views to themselves, how can the people decide whether they want them on the bench? For all the recent talk about the importance of judicial "modesty," Supreme Court justices have been anything but modest in imposing their views on society. Shouldn't we know what those views are before investing them with such power?
Obviously nominees shouldn't be expected to discuss the merits of pending or likely cases. And obviously they shouldn't promise to uphold or overrule past decisions. But no one should get a lifetime appointment to what has become, in effect, an American superlegislature without shedding some light on how he would "legislate."
It is not enough for a nominee to say, as Roberts said last week, that precedents should not be lightly overturned, or that judges should be like umpires. Those are platitudes. But whether Roe v. Wade was rightly or wrongly decided and why -- whether racial preferences are consistent with the 14th Amendment's guarantee of equal protection -- whether the Supreme Court should look to other countries' laws when interpreting the Constitution -- those are fair but pointed questions to which a Supreme Court nominee should be required to give nonevasive answers.
Actually, Roberts did give a clear answer to one of those questions: "I don't think it's a good approach," he said about the use of foreign law as precedent -- in part because with "foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever."
Let the record show: The heavens didn't topple when Roberts answered that question. Chances are, they would have stayed up if he had been made -- as all Supreme Court nominees should be made -- to answer other questions, too.
(Jeff Jacoby is a columnist for The Boston Globe).
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