09/16/2005 04:12 am ET Updated May 25, 2011

Questionning John Roberts?

For those Senators who are struggling to learn something meaningful about John Roberts's views of constitutional interpretation, it's long past time to stop asking questions that he can legitimately deflect by saying "that issue may come before me as a justice if I am confirmed, so it would be inappropriate for me to respond." No more questions about Roe v. Wade, please. The way to proceed is by posing hypotheticals that will reveal something useful about how Roberts thinks about the Constitution without putting him in the untenable position of having to opine on potentially pending cases. This is not so hard to do.

For example, Senator Feinstein might ask, "Judge Roberts, how would you analyze the constitutionality of a hypothetical California law prohibiting couples from having more than two children?" Or Senator Lahey might ask, "John Roberts, how would you analyze the constiutionality of a law denying gays and lesbians the right to vote in Alabama?" Or Senator Kennedy might ask, "Judge Roberts, how would you assess the constitutionality of a decision of the city of Rockford, Illinois to put a ten-foot-high cross in front the the town hall?" Or Senator Spector might ask, "Judge Roberts, would are your thoughts on the constitutionality of a law granting reparations to African Americans because of the practice of American slavery?" Or, Senator Kennedy might ask, "Judge Roberts, how might you evaluate the constitutionality of a Texas law giving private religious schools equal per public subventions equal to the per pupil subventions received by state public schools?"

None of these questions could plausibly be ducked by the nominee on the claim that they pose issues that might come before him. That would be far-fetched. But each poses an interesting issue that would require the nominee to ruminate about the meaning of fundamental rights, the separate of church and state, the right to decide whether or not to have a child, substantive due process, the right of privacy, and so on. By using such indirect quesions, we might actually learn something interesting about the nominee.