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Four Questions For John G. Roberts

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


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?

If you side with the President in these situations, please tell us what will go too far, in your estimation, as the balance between government power and individual liberties get skewed in favor of the former at the expense of the latter.

Finally, does it bother you that you may have put our brave soldiers at risk by permitting the executive branch to disregard the Geneva Convention as it may apply to Guantanamo Bay detainees? Doesn't your ruling make it easier for other countries to similarly disregard the Convention and mistreat US soldiers the way some US soldiers mistreated Iraqi detainees?"

3. Federal Legislation

"Judge Roberts: You have talked a lot during your professional life about the need for 'judicial restraint.' And many judges and legal scholars who share your political beliefs rail against the idea of 'judicial activism,' a term your future colleague, Justice Sandra Day O'Connor, follows in her speeches by the words, 'whatever that means.'

But your conservative colleagues on the Supreme Court over the past years have overturned many Congressional efforts at legislation involving important issues like violence against women and drug-free school zones.

Where does judicial 'restraint' end and judicial 'activism' begin? Isn't a judge an 'activist' judge anytime he or she 'acts' in any case no matter what he decides? And wouldn't the doctrine of 'judicial restraint' suggest that the Court permit more legislation to pass muster?"

4. A Living Constitution And Bill of Rights

"Judge Roberts: The Constitution, which you soon will be charged with interpreting, endorsed slavery. One hundred years after the document emerged from the cauldron of the Founders' debate it was used to justify segregation and other odious things like preventing states and the federal government from enacting health and safety and child labor laws.

Given what we clearly now know about the way modern legislation is created - about the compromises and intentional ambiguities that are written every day into our laws - how can you argue that today's judges may only look at the actual text of a document written only by rich white men nearly a quarter of a millennium ago?

And if the Bill of Rights was designed to protect minorities from the tyranny of changing majorities, should the most critical Amendments be interpreted today to ensure greater civil liberties in the face of public pressure and passion?"

I know that nominee Roberts would never in a million confirmations answer some of these questions. I know the process upon which he is about to embark has devolved to the point where it is far more sizzle than steak - you can thank past Republican and Democratic administrations for that. And I know that over time, with each passing decision he authors or joins upon reaching the Court, we'll get a better sense of where he stands on these truly meaningful areas of inquiry. The problem is: by then it may be too late.

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