Toothless Wolf Questions Roberts

CBS' Andrew Cohen Says Senate Could Do A Better Job In Hearings

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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For a gang that has the legitimate constitutional responsibility to give "advice and consent" to President Bush when he picks someone for the Supreme Court, Republicans on the Senate Judiciary Committee sure spent a lot of time Monday afternoon telling Chief Justice nominee John G. Roberts, Jr. that he didn't really have to answer the truly important questions everyone wants asked and answered before he gets to serve on the High Court.

Indeed, one of the clearest and most ironic themes to emerge from an otherwise drowsy day of tired rhetoric was the consistent push by GOP Committee members to offer Roberts all sorts of legal and political justifications that would allow him to effectively thwart the very purposes behind the hearing itself.

The Senate Judiciary Committee is, in essence, holding a hearing to vet a candidate while telling the candidate that it's okay to fail or refuse to be vetted. How's that for a great example of your Congress at work? It's like a wolf taking out its teeth before it goes out for the hunt - and it's no wonder these guys won't get much more insight than the little we already have into Roberts' theories of life and law.

Read what Sen. Jon Kyl (R-Ariz.) told Roberts: "This committee's precedents, the rules of judicial ethics, and a sound respect for the unique role of the federal judiciary in our society all counsel in favor of some basic limits on the types of questions that a Senator should ask of a judicial nominee."

Here is what Sen. John Cornyn (R-Texas) said: "But just because we are curious does not mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issue that might come before you if you sit on the Supreme Court."

Not any case, any issue, Sen. Cornyn said. So what's left to ask him about? Whether he likes Indiana or Indiana State?

Sen. Richard Lugar (R-Ind.), who isn't even on the Committee but who helped introduced Roberts, also pushed for a lack of oversight: "Under the judicial confirmation standards that prevailed throughout most of our history," Sen. Lugar said after generally describing Roberts' qualifications, "my remarks could appropriately end at this point, and this Committee and the Senate as a whole could proceed to consider Judge Roberts' nomination in light of the outstanding qualifications just summarized."

Sen. Orrin Hatch (R-Utah) said: "I will be the first to admit that Senators want answers to a great many questions. But I also have to admit that a Senator's desire to know something is not the only consideration on the table." He then went on to give three reasons why Roberts ought not respond to questions he no doubt will be asked of Committee members.

Now, no one disputes that it would be inappropriate for nominee Roberts to come before the Senate and tell it definitively that he would or would not overturn Roe v. Wade. Such a statement would foreclose any meaningful evaluation by Roberts in any future abortion rights case.

Just as surely, it would be inappropriate and even intemperate for a future Chief Justice to tell the Committee that he wants to take the Court itself in any one particular jurisprudential direction. Such talk not only would tick off that nominee's future colleagues on the Court, it would also more than likely prove to be misleading since no one can ever truly predict how any nine people are going to interact over a long period - just look at how hard to predict the Rehnquist Court wound up being before its demise.

But that's not what the Senate Republicans were talking about. They were pitching for a much larger cone of silence surrounding Roberts; a cone that would protect him from both inappropriate questions and others which are perfectly legitimate - and in some ways vital.