By their very nature, Senators will be looking to the past. In particular, we can expect many questions of Judge Roberts dealing with his stance on civil rights and on voting rights--areas where his writing for the Reagan Administration have made headlines. But as Professor Jeffrey Rosen pointed out, Judge Roberts former boss and predecessor, Chief Justice Rehnquist was also the subject of backward looking Senate:
But in the case of Supreme Court nominees, looking backward may not be the most reliable way to predict the future. During William Rehnquist's confirmation hearings, first as a nominee for associate justice in 1971 and then for chief justice in 1986, the discussion focused heavily on a memo he wrote as a law clerk that seemed to question the soundness of Brown v. Board of Education. By expending so much of their energy on the issue of segregation, the senators asked little, in the end, about the issue that would come to define the Rehnquist court -- the relationship between the federal and state governments.
Assuming Judge Roberts becomes Chief Justice Roberts, Professor Rosen points to a number of issues, dealing with science and technology that will come to dominate a Roberts Court.
As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation. The court's response to those issues, far more than its resolution of cases that will be decided next year, will define the role it will play in the first decades of the 21st century.
Left-leaning groups have tried to paint Judge Roberts and the man who will overturn Roe v. Wade. But as the right to abortion is not likely to be the issue in the future, but rather the purpose behind abortions. "Regardless of whether Roe v. Wade remains on the books in 10 or 20 years, however, America's political and legal disputes about reproduction may well have moved far beyond efforts to balance the interests of a fetus against the interests of a pregnant mother," wrote Rosen. Rather the debate may well center on whether or not an abortion may be performed to prevent the birth of a homosexual child.
"if scientists ever learn to identify a genetic predisposition to homosexuality with a high degree of certainty, genetic screening might be used to 'weed out these embryos,' as [Notre Dame law professor O. Carter] Snead put it, ''or to select for them.'"
If you think that such a debate is unlikely since there has been no discovery of a "homosexual gene,"
a Republican state legislator in Maine introduced a bill to ban abortions based on the sexual orientation of the unborn child. Snead [the former General Counsel to the President's Commission on Bioethics] imagined that a conservative state might pass a law banning genetic screening "for elective sex selection or sexual-orientation selection not linked to a therapeutic concern."
But Democratic senators, spurred on by groups like NARAL and People for the American Way will ask whether Judge Roberts will vote to overturn Roe. As I have argued before, as a judicial conservative, Roberts may vote not to take an abortion case at all, thereby avoiding the issue--leaving the matter to precedent. The problem, of course, is that novel questions of law such as abortions to prevent the birth of children of unwanted characteristics will come before a Roberts Court.
I will be looking at a number of the issues Professor Rosen raised in his article, including more on this one.
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