No one has asked me - alas, no one ever asks me - but I'd like to submit the following list of questions for Supreme Court nominee John G. Roberts, Jr. during his confirmation hearing this week. I don't really care which Senators get around to using my material just so long as they credit me when they do so.
1. Judicial Independence
"Judge Roberts: Members of your party, the Republican Party, have made a concerted effort over the past few years to challenge the independence of the federal judiciary - even threatening judges over decisions with which they did not happen to agree.
This disturbing trend reached its nadir earlier this year during the saga over Terri Schiavo. House Majority Leader Tom DeLay and even a few members of the very Senate that is about to pass judgment upon you are part of an ominous chorus of voices that sought then - and still seeks now - to diminish the prestige of the federal courts in the name of partisan politics.
Your legal hero - and the man whose job you soon may fill - the late Chief Justice William Rehnquist, was so concerned about the Congressional pressure and intrusion upon its sister branch that he went so far as to warn about it earlier this year in his Annual Report On the Judiciary, which would turn out to be his last.
Are you prepared to denounce this calculated and widespread effort to diminish the authority of judges? If not, why not? Do you think that members of Congress should threaten judges with retaliation following a particular ruling? Do you think the federal courts reacted properly when confronted with the legislative attempt this past winter to help Schiavo's parents?
And what are your overarching views about the need to ensure that the judiciary remains an independent, co-equal branch of the government free from threats and intimidation? In other words, are you going to be a chief justice who helps shore up the judiciary from assault or one who helps tear it down from within?"
2. The War on Terror
"Judge Roberts: About six weeks ago you voted in a controversial case involving the use of military tribunals and their relationship to the Geneva Convention. In effect, you ruled that the Geneva Convention does not apply in the circumstances presented by the case.
Your ruling pleased the man who nominated you first as an associate justice and now as a chief justice - but it angered and alarmed many lawyers and judgers here and around the world. And, just last week, your colleagues on another federal appeals court ruled that the President may hold and detain indefinitely and without charges a US citizen labeled by the President as an 'enemy combatant.'
These are just the latest in a long line of rulings that have come out of the federal courts since the terror attacks on America on September 11, 2001.
What is your overarching view of the president's constitutional power and authority to fight the legal front in the war on terror? Without a Congressional Declaration of War, do you believe the executive branch has unlimited powers to detain U.S. citizens? Or do you side with the Court's majority in 2004 when it ruled that the current state of hostilities do not give President Bush a 'blank check' to disregard core constitutional rights?
Do you believe that our civilian court system can validly impose a death sentence upon a defendant who has not had a chance to question key defense witnesses - now I'm thinking of Zacarias Moussaoui - or do you think that federal prosecutors must play by the rules of domestic criminal law when they choose, for whatever reason, to bring terror suspects into the civilian system?