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What to Ask Nominee Roberts

Senators should probe his impartiality

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Campaign mode. That's been the modus operandi of interest groups on the left and right before President Bush announced his Supreme Court nominee on prime time television Tuesday evening.

By naming federal appeals court judge John Roberts - a choice less contentious than many had expected - the fighting mentality may recede somewhat, but it's unlikely to disappear.

Treating this nomination as a heated political battle will not serve America. A justice isn't to be confused with an elected official, who swims in the political and ideological currents of the times. Rather, this lifetime appointee's job is to do the exact opposite - to stand high on the rock of the Constitution, untouched by the swirling waters of popular or personal opinion.

Impartiality highly important

It almost goes without saying that establishing the nominee's impartiality has to be of prime importance in senators' questioning of Judge Roberts. Yet these lawmakers are under extreme pressure from highly paid lobbyists, sophisticated interest groups, and voters to focus on the nominee's presumed ideology.

From what is known now, the nominee has impressive credentials. Having graduated with honors from Harvard Law School, clerked for Chief Justice William Rehnquist, argued 39 cases before the Supreme Court (winning 25), and served two presidents (Ronald Reagan and George H.W. Bush) in a legal capacity, he obviously has deep familiarity with the law and the role of the high court.

His nomination remarks about getting a lump in his throat every time he ascended the Supreme Court's marble steps point to a humility that viewers saw for the first time Tuesday, but those who know him say is genuine. Such a quality, as well as reported geniality and open-mindedness, show the kind of temperament necessary for this hot seat.

With those qualifications well established, that leaves judicial approach and personal ideology to probe. Significant, culturally divisive issues such as bioethics, gay marriage, so-called partial-birth abortion and right-to-die are expected to reach the high court. To rule on such cases - as well as ones that can't even be anticipated yet - the nominee must be able to put ideology aside.

Questions that try to ferret out Roberts's personal ideology are bound to be asked. But far more important will be those that explore his ability to rise above bias; that delve into his understanding of the court as an interpreter - not a maker - of law, and as a body that upholds constitutional rights, but doesn't create new rights not clearly in the Constitution; and that seek his views on key judicial concepts such as when to honor legal precedent.

Questions for Roberts

Senators shouldn't put Roberts in the position of dodging questions because they may pertain to future cases. But they can get to his judicial approach and other issues by questioning along these lines:

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• Point to a few instances when you've had to put aside strong personal views - either in your White House work or your two years on the bench - to argue or judge a case.

• As the definition of rights - in education, the workplace, family planning, etc. - has expanded in US history, has it been better for state and federal legislators or for the courts to bring those to citizens?

• Even if a decision is based clearly on the Constitution, should a justice also weigh the consequences of that decision on broader society?

• Should the Constitution be a flexible document whose interpretation changes with the times?

• Public approval of the Supreme Court has eroded over the years. What should be done to reverse that slide?

• Name three books that would give Americans a better understanding of the role of the courts, especially the Supreme Court, in a democracy.

The Ginsburg answer

The senators must remember that it is the solid foundation of the Constitution that anchors this country in times of turmoil. It's fine to ask about a nominee's personal views, but the answer senators should get is one that came from Ruth Bader Ginsburg - President Clinton's first nominee - when she went through her hearings.

Unlike Judge Roberts, Justice Ginsburg was an avowed activist (of women's rights). Yet she was able to state: "I come to this proceeding to be judged as a judge, not as an advocate."

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