Hi Keith,
 
Biden's argument was creative, but ultimately a non-starter.  (Indeed Biden knows perfectly well that no candidate for Supreme Court since the unfortunate Robert Bork has ventured to telegraph his or her decisions on possible cases; he knew Roberts would never respond; so he' s making a show for the folks in Delware by thundering, "Don't you think the people have a right to know?"  when of course he knows they don't.)  I thought Roberts's response to Biden was right on the mark:  Opinions expressed in judicial decisions are the direct result of full arguments made by both sides, of a complete trial record, of deliberations in chambers, of discussions with clerks, and of negotiations over the final drafts of opinions.  Further (this is my addition, not Roberts's) there's no way to write a judicial decision without expressing an opinion about something; it does not therefore follow that one must publicly declare one's opinion about everything.
 
I also want to note that Roberts is insisting on talking about these matters as decisions on individual cases, largely crafted to the facts of those cases, rather than as positions on broad policy issues, which he consistently says is the province of the legislature.  
 
I would say, further, that Roberts has not been refusing to talk about legal issues.  Indeed, he has been quite detailed in his analysis of some questions of constitutional and statutory law.  But when genuinely controversial issues have been brought up, on topics that are known to be a continual topic of federal litigation, he has (quite correctly) not telegraphed what his opinion would be in advance.
 
In general I have been impressed by Roberts's refusal to be rattled by politicians, on both sides of the aisle, who want to make political hay on a confirmation they know is in the bag.
 
Ken Schneyer

________________________________

From: Academy of Legal Studies in Business (ALSB) Talk on behalf of maxwell
Sent: Thu 9/15/2005 4:14 PM
To: [log in to unmask]
Subject: John Roberts' Refusals to Discuss.



Greetings,

After 3 days of hearings I am curious about ALSBers' assessment of the soon to
be Chief Justice Roberts. As are most people, I am extremely impressed with
the man's intellect and advocacy skills. My uneasiness  comes, however, from a
feeling that he is being disingenuous when he refuses to disuss certain
general ISSUES (as distinguished from specific CASES now in the courts) based
on the "possibility" of the issue coming before the court in the future. One
of the Democrats on the committee (Biden?) challenged Roberts on this by
pointing out that every time a justice writes an opinion he or she is
revealing their view on an issue but they obviously do not recuse themselves
fom hearing future cases that might involve the same issue. For example,
Scalia's view that gay rights do not exist as a constitutional matter is
obvious from his dissent in Lawrence, but no one would suggest that he has now
disqualified himself from participating in a future gay rights case before the
court.

So, I guess my question is whether Roberts' refusals are based on valid
grounds. Any thoughts?

Keith