Sunstein Discusses Supreme Court Nominee Roberts

Cass Sunstein discusses Judge John Roberts, nominee to the US Supreme Court Fresh
Cass R. Sunstein
NPR Fresh Air
July 22, 2005

This is FRESH AIR. I'm Dave Davies, senior writer for the Philadelphia Daily News, sitting in for Terry Gross.

President Bush's nomination of Federal Circuit Court Judge John Roberts to the Supreme Court has touched off the long-anticipated debate over the direction of the court after the departure of Justice Sandra Day O'Connor. Conservatives have praised the Roberts pick. Liberal activists have condemned it. And Senate Democrats are reacting cautiously, saying they want to know more about Roberts' judicial philosophy.

To discuss Roberts' career, the issues before the court and the forthcoming confirmation battle, I spoke earlier today with Cass Sunstein, a professor of law and political science at the University of Chicago. Sunstein clerked for Supreme Court Justice Thurgood Marshall, and has written widely on legal and constitutional issues. I asked him if he had a sense of how this nomination will be received as the hearings approach.

Professor CASS SUNSTEIN (University of Chicago): Too early to say, and that's good. The early reaction on the part of some conservatives, which was to dance and describe this person as extremely wonderful in all ways, doesn't serve the country entirely well. We should discuss substance a bit before dancing. We should try to figure out something about this person before rushing to condemn or to celebrate. We can and should celebrate his competence--there's no question about that--and his character. There's no question about that.

But competence and character are not really what this is about. They're necessary conditions. The question is whether the court is going to be moved in massive directions or not. And especially because this is someone who's relatively young and has such a thin public record, we just don't know about that. So I think to wait and try to figure out more about what kind of conservative this guy is is the right approach for conservatives, liberals and moderates alike.

DAVIES: He, of course, has argued, I believe, 39 cases before the court and, of course, did some rulings as an appellate court judge in Washington. Let's go over his record to the extent you know it. I mean, can you give us a sense of some of the most important cases he has decided as a judge?

Prof. SUNSTEIN: I think the most important one involves the Endangered Species Act. There is a disputed question whether the Endangered Species Act actually is constitutional, whether Congress has the authority to protect endangered species when they're on, say, one landowner's property and there isn't an obvious connection with interstate commerce. Congress, of course, has power over interstate commerce, but it doesn't have general authority to do whatever it thinks best. The majority view in the courts is the Endangered Species Act is constitutional even if it involves a single landowner with a single species on his property. But Judge Roberts, in a separate opinion, strongly suggested he thought the Endangered Species Act was not constitutional in some of its applications to particular landowners. And in doing that, he really reached out and went beyond the position of a lot of Reagan and Bush appointees.

This is a tea leaf, and you can't read a whole lot into it, but I think it's the most important tea leaf there, and it suggests that he's not unwilling to use the power of the federal judiciary to strike down acts of Congress that exceed what he believes are Congress's constitutional powers. And that's a position traditionally associated with, let's say, strong conservatives.

DAVIES: Now that was a minority opinion he wrote in that case, was it not?

Prof. SUNSTEIN: Yes, it was just Judge Roberts and another judge, also very good and also very conservative. That is Judge Sentelle. But all the other judges on that court, including a number of Reagan appointees and Bush appointees, too, Bush I, thought that the Endangered Species Act was constitutional.

It seems technical, but it's quite a bit deal. The Supreme Court has indicated a willingness to strike down acts of Congress, including civil rights acts, as beyond the authority of the national government. That would change constitutional law's fabric in pretty large ways. We don't know from Judge Roberts' overall record whether he's on the train of constitutional change, but that single opinion indicates that he's at least willing to think about it.

DAVIES: Give us a sense of the larger constitutional issue that is at work in this business about the Endangered Species Act. There are conservatives who believe that a return to what they call the Constitution in exile would give us a very different federal government.

Prof. SUNSTEIN: Yeah, there are some conservatives who have a pretty extreme program. And what they think is that the real Constitution has been obliterated in the last 50 years, and that since Franklin Delano Roosevelt at least, the Supreme Court has taken a horrendous wrong turn, and it's time to have some kind of restoration. Sometimes what they say is they want the Constitution roughly as it was in 1920. Sometimes they say they want to interpret the Constitution to mean what it originally meant; that is, what it meant at the time it was ratified. When the president of the United States speaks of strict construction, some people think what he's saying is the Constitution should be understood to mean exactly what it meant at the time it was ratified.

Now that view sounds kind of good and innocuous and respectful of the founders, but it would be quite radical. It would mean that, for example, racial discrimination by the national government would be just fine, that sex discrimination by all governments would be just fine. This federalism issue is a way into that, because what a lot of people have objected to, a lot of conservatives, including most loudly the most extreme conservatives, is that Congress' power should be more sharply disciplined than the court has been willing to do since the 1930s.

And what this would mean concretely is that not only the Endangered Species Act would be in trouble, but also the Clean Water Act, in some of its applications, would be in trouble. The Americans With Disabilities Act would fall in part, as it already has. The Age Discrimination Act would fall in part, as it already has. The Violence Against Women Act would fall in part, as it already has. Some other laws, including regular civil rights laws, that is the older ones, and the Voting Rights Act, they might be in constitutional jeopardy also. Some of federal criminal law might be in trouble.

My guess from this opinion is that Judge Roberts is at least willing to think about the idea that the constitutional train has gone off the rails since 1950 or so. There's no evidence in his record that he's any kind of extremist or revolutionary, but his record's pretty thin. And this opinion does suggest that he's open at least to reconsidering or moving the law in directions that are major.

DAVIES: He has spent only two years on the appellate court bench, deciding these, you know, appellate cases. Do you think it's troubling? Do we need judges with either more judicial experiences or either more of a record which gives us a sense of their own constitutional views?

Prof. SUNSTEIN: The good side about Judge Roberts is that this isn't someone who's unfamiliar with issues that come to the Supreme Court. Even though he's only been a judge for two years, he has fantastic experience in the world of Supreme Court advocacy, and he really knows what he's doing. So I think we could be worried about someone who's just been a judge for two years if they're inexperienced in the issues that the Supreme Court deals with. Then there'd be some competence questions. But for Judge Roberts, there's no competence question at all, and the president really should be complimented for choosing someone who is so obviously qualified.

On the other hand, there is the following issue. He's--with respect to the huge issues of the day, he's a bit of a blank check, and that's, in a way, OK, because it suggests he hasn't closed his mind on issues. But what kind of conservative Judge Roberts is remains mysterious. So it's noteworthy that the president didn't choose someone who is established as someone with extreme conservative views or established as someone without extreme conservative views. He chose, instead, someone who's very affable, someone who's quite excellent, but someone who we really have very few clues about in terms of what kind of conservative he would be. And some people, I think, conservatives as well as liberals, might be nervous about that.

DAVIES: Is it a political reality of the modern confirmation process that we will get more and more judges with a thin judicial record, because there's less to pick apart?

Prof. SUNSTEIN: I think so. This was what was said by a lot of Judge Bork's supporters a long time ago. They said, `If you go after Judge Bork hard, then presidents are going to have an incentive to appoint people who have no paper trail.' And the evidence suggests that that's so. Justice Souter had relatively little paper trail. Justice Thomas had relatively little paper trail. Justice Breyer and Justice Ginsburg both had a very long paper trail. They were professors, so paper is what they generate. But it wasn't on the big issues. They were, for the most part, steady, moderate, not noisy people whose views on large issues, you couldn't tease out terribly well. You'd know they wouldn't be likely to want to overrule Roe against Wade, but even there, Justice Ginsburg, as Judge Ginsburg, thought to be liberal, was a big critic of Roe against Wade. She said it did too much too soon.

So we have had justices who have had a great degree of unpredictability. I think what some people concerned about Judge Roberts might worry over is he's publicly unpredictable, but he might be privately predictable. It's possible that the White House knows that this is, let's say, a more extreme conservative than the records suggest.

DAVIES: My guest is University of Chicago Law Professor Cass Sunstein. We'll talk more after a break. This is FRESH AIR.

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DAVIES: Our guest is University of Law Professor Cass Sunstein. We're talking about President Bush's nomination of Judge John Roberts to the Supreme Court.

Well, let's look at some things beyond his judicial record. One thing we know is that he was a member of the Federalist Society, which is a conservative lawyers group that, I mean, a few years back, they were written about as having linked the Ken Starr investigative team with the Paula Jones legal team, and in part helping to generate the Monica Lewinsky scandal. What does Judge Roberts' membership in the Federalist Society tell us?

Prof. SUNSTEIN: It tells us he's a conservative. It doesn't tell us that he's an extremist or that he is on some sort of political mission as a judge. The Federalist Society is very large. It's mostly an academic society. There are people who are moderate conservatives there. There are people there who are extremists there. There are people you really couldn't describe as conservatives, so extreme are they. There are people you would have a hard time describing as conservatives, so moderate are they.

So I think the Federalist Society's a pretty wide tent. It is true that some members are really plugged into the White House and are highly political and do have an agenda. But the fact that Judge Roberts is a member of the Federalist Society tells us only something I think everyone ought to know, which is that he's a conservative, but that can't be disqualifying.

DAVIES: He is Catholic, said to be a man of faith. His wife, I believe, is active in a pro-life organization. Are those clues, are those insights into his judicial philosophy? Are they fair game for the confirmation process?

Prof. SUNSTEIN: The fact that he's Catholic certainly is not fair game. And, you know, we've come to a point in this country, I hope and believe, where someone's religious convictions can't be used against them. The fact that his wife is pro-life, if that is a fact, I don't think that's fair game, either.

I'll tell you what is fair game, which is to ask whether he believes that the Constitution protects the right of privacy, and see what he says about that. Both Justice Thomas and Justice Scalia have suggested not just that they don't like Roe against Wade, but also that they think the Constitution doesn't protect the right of privacy at all.

Now that's a very big deal. That would mean that compulsory sterilization would be OK. It would mean that people don't have a constitutional right to live with other members of their family. It would mean that the government has a right to ban contraceptives. It would revolutionize an area of the law that's been going now for about half a century, and if you count it a certain way, by a century. So it is fair to ask him if he believes in a right to privacy, and if he gives an evasive answer to that question, that canon will be held against him.

DAVIES: He clerked for Justice Rehnquist. He was a protege of Ken Starr. Are there any other professional relationships or components of his experience that would give you insight into his philosophy?

Prof. SUNSTEIN: That's a great question. And I think there we do have a few things to learn from. The fact that he's clerked for Chief Justice Rehnquist tells us a little bit. And people who know him say that he and Chief Justice Rehnquist have a terrifically amiable relationship with a lot of compatibility. Now Rehnquist, like Judge Roberts, is a great guy, so I'm sure that's part of it. But it wouldn't be wrong, I think, to say that there's an ideological congeniality also between the two. And, you know, that's worthwhile knowing.

The fact that he's a protege of Judge Starr, who is a very articulate and strong backer of Judge Roberts, is also worth noting. It tells you something. Now I'd like to say about Judge Starr that when he was on the Court of Appeals, he was a moderate judge. He was not an agenda-driven conservative or an extremist by any means. So if Judge Roberts ends up being the way that Ken Starr was as a judge, then I think all sides should say, `We have a real judge here and not an extremist.'

But it is noteworthy that, I guess, in his background, he doesn't have sponsors, at least close sponsors or close colleagues who are on the other side ideologically. It is true that some people who are left of center quite like him and respect him. And from all indications, this is someone who everyone should be willing to like and respect. He's just a good and admirable person. But whether he has the kind of open-mindedness that we saw in Justice O'Connor, a distinctive kind of conservative, the record is very thin. And the fact that he has these particular friends and sponsors doesn't tell us a whole lot.

DAVIES: Well, Cass Sunstein, I wonder if you could briefly take us through some of the major areas of law that will be confronting the Supreme Court. Are there cases soon that could make new law in areas of abortion rights or affirmative action, gun laws?

Prof. SUNSTEIN: The court has a case next term involving abortion. And as I recall, it's a case about parental notification or one of the spin-off issues that the court hasn't had to deal with in a long, long time. What's interesting about this is that the court has chipped away a bit at the abortion right. The big headline news has been that the court hasn't eliminated the abortion right, but there has been some definite chipping. And it's expected, given the composition of the court, that at least some chipping will continue. Justice O'Connor wanted to preserve the core of Roe. If Judge Roberts thinks Roe is wrong and an abuse of authority, then we could see the abortion case that the court's about to decide as the basis for pretty significant movement away from Roe, and maybe even an indication that it might be ready to go before terribly long. So that's a big one.

Coming down the pike, not immediately, but pretty soon, are cases involving affirmative action, campaign finance, at least at the state level, and property rights. Those are three hardy perennials: campaign finance, affirmative action and property rights. And the court has spoken to each of them relatively recently, but by very fragmented courts that leave the law quite flexible. It's not at all clear, but it's very possible that Justice Roberts would want to take a very hard line against both affirmative action and campaign finance. And that would have very major effects on the country at both the federal and state levels. For educational institutions, a modest degree of affirmative action is OK. It's possible that that would be eliminated. So, too, would campaign finance, where the court has not been very excited about campaign finance restrictions.

DAVIES: And what about the issues of homeland security and the way, for example, detainees have been treated?

Prof. SUNSTEIN: One that's coming up very soon involves the president's power to create military tribunals to try suspected terrorists. The Court of Appeals in Washington recently said the president does have the authority to use military tribunals to try suspected terrorists. Judge Roberts was on that panel. It may be that he'll be disqualified from participation in the case as a result. Even if he is, the president's power to wage the war on terror has produced a very badly fragmented set of decisions from the court, where Justice O'Connor took the lead role, saying the president does have a lot of power here, but there's a constitutional right which is to fair procedure, and that's kind of a trump, the right to fair procedure before you're deprived of your liberty. Some of the justices think she overreached and that the president can do very much as he wants if he's trying to protect the nation's security.

Justice Roberts undoubtedly will play a key role on that, not just because the court is so badly divided, but also because he combines a lot of quality with a lot of expertise, so he's kind of a specialist in the power of the president.

DAVIES: University of Chicago Law and Political Science Professor Cass Sunstein. His new book is "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America." He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.

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DAVIES: Coming up, why "Everything Bad is Good for You." Steven Johnson contends video games have become more challenging and complex and are actually making our kids smarter. He even thinks television is sharpening our minds. Also, more on last night's Supreme Court nomination with Chicago Law Professor Cass Sunstein.

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DAVIES: This is FRESH AIR. I'm Dave Davies sitting in for Terry Gross.

As the nation begins to assess President Bush's nominee to the Supreme Court, Federal Circuit Court Judge John Roberts, we've asked Cass Sunstein, a professor of law and political science at the University of Chicago, to help us assess Roberts' record and the coming debate.

Earlier this year the subject of judicial confirmation was fought out in the Senate over whether the filibuster would be preserved, and in the end a compromise was reached. What does that showdown and the way it was resolved tell us about what we can expect in the Senate?

Prof. SUNSTEIN: I think it tell us about the massive power and discipline of the Republican Party. I thought this was a brilliant maneuver to try to threaten to get rid of the filibuster, which has been there for a long, long time, and that the Republicans, in my view, had a smashing victory. The reason they had a smashing victory is they got some of the most controversial people through. They also kept the option of the elimination of the filibuster in reserve. My hunch is the Democratic senators are well aware that any effort to filibuster will trigger talk and maybe the reality of the nuclear option. There's a good chance that the Senate Republicans have the votes to initiate the nuclear option. The Republicans were on message throughout in a way that, by the Democrats' light, confused the issue, so they are very much in the ascendancy now.

DAVIES: That's interesting because I think some Democrats looked at that as a victory for moderates, that they had effectively told the nation that the Republicans were radicals who wanted to overturn a century of tradition and were able to defend the filibuster. You see it differently.

Prof. SUNSTEIN: I do. There's an old story of a husband and wife where the husband says about a cake, `Let me have the whole cake.' And the wife says, `Well, why don't we split it 50-50?' And the husband says, `Well, let's compromise. I get three-quarters.' I think the Republicans were the husband in that story except that instead of three-quarters they got maybe 80 percent.

The Democrats are right to say that they maintained the filibuster option and that's not nothing. And they also did make some fair points about the longevity of the filibuster and its role in the system of separation of powers, but those were kind of academic points.

DAVIES: The confirmation hearings will, of course, attract an enormous amount of attention. And there's always a debate or a difference of opinion about what judges should be asked. I mean, there is one view that the court should be governed by law and precedent and weigh each decision that comes before it and that, in that vein, you don't ask judges to speculate about decisions that might be made. And then others say, `We need to know where you stand on privacy, on choice, on abortion.' What would you ask? What do you think senators should be asking?

Prof. SUNSTEIN: I think the first question senators should ask is: Do you believe that the Constitution means what it originally meant? Do you believe that the Constitution should be interpreted to mean what it meant in 1789 except insofar as it's been amended? When it's been amended do you think it should be interpreted to mean what it meant after the Civil War? If the nominee says yes to that question, that seems to me a very bad warning sign, in my view, that justifies follow-up questions.

The follow-up questions might ask, for example: Do you believe that established precedent should be taken seriously even if it's inconsistent with the understanding from a century or two centuries ago? If the judge says, `I would like to go back to the original understanding, but I understand we have a tradition that involves respect for precedent,' that means the warning is less troublesome.

I also think it's perfectly appropriate to ask a nominee, `Do you believe that there is a right to privacy in the Constitution? Do you think that--not that Roe against Wade is necessarily right, but do you believe that the privacy notion has validity?' And if there's an evasive answer to that question, that's a real problem.

I think it's fine to ask a nominee which decisions of the past 50 years do you dislike most? Now it's also fine for the nominee to be circumspect about answering that question for fear that some of the decisions of the last 50 years are vulnerable and might be overruled, and if they're still live, then the nominee might not want to take a stand on them.

But we can get a big clue about what a nominee thinks by seeing what they like and what they dislike. I don't think nominees should answer questions that would precommit them to particular votes on particular issues. So to say, `Would you vote to overrule Roe against Wade?' That's not an illegitimate question, but it's probably wrong to answer it.

DAVIES: When they ask the questions that you think are important and the nominee, who has been coached to be evasive, is evasive, what should the senator then do?

Prof. SUNSTEIN: The senator should hold evasiveness, unless it's evasiveness about particular votes, against the nominee. The process now has been fantastically scripted so there are a lot of superb people, I bet, already working with Judge Roberts a little bit, and if not now, soon, to help him--and he is really good so he doesn't need a tremendous amount of help--to evade questions.

This is something that the Senate should know about and should be bemused and a little aggressive with. If a nominee says, for example, `I'll follow the law.' Really that's terrible. That's become the line that nominees give, `I'll follow the law.' In our system, fortunately, everyone agrees with that. So that tells us nothing. If the nominee talks a lot about Indiana and growing up there and what was learned in the steel mills, that's relevant some, but that's not what the issue should be centering on. So this turning Supreme Court nominees into heroic characters in docudramas, that's been done and the Senate really shouldn't stand for that. That just evades the issues.

So what the Senate is entitled to do is to try to get a sense of the general orientation of the judge, not of specific conclusions, and if the judge refuses to give a sense of the general orientation, that's a definite problem.

DAVIES: You described him as a great guy, well liked by people from many different perspectives. There's a long history of conservatives being disappointed with nominees who they thought would carry their agenda to the Supreme Court who, in the end, didn't. I mean, Justice Kennedy and many others. I mean, I'm wondering if the fact that he seems to be an amiable guy whose opinions don't use inflammatory rhetoric suggests that he's the kind of guy once he's in a body where many opinions flourish that he might be more of a consensus builder than conservative backers would hope.

Prof. SUNSTEIN: Yeah, it's possible. History suggests that conservative presidents mostly get conservative justices and they aren't disappointed. So there are a few prominent counterexamples, but the lament that you can't predict whom you're appointing actually isn't backed up by history. O'Connor is often said to be someone who disappointed the conservatives, but President Reagan said that, `In O'Connor I got exactly what I wanted.' So I think the conservatives who have been disappointed by some of these appointments--maybe with Justice Souter they're right to be--but the court really has shifted very, very dramatically to the right in a short time.

With respect to Judge Roberts, if there's going to be a shift, I would guess it would be extremely modest. For one thing, we don't know exactly what he believes, so the confirmation process should be maybe the most interesting one we've had in a long, long time. And for another thing, this is someone who has had a long history of dealing intensely with the most sharply disputed issues of the day. So there's no question that he's thought long and hard against both abortion and privacy. There's no question that he's thought in some detail at least about affirmative action. There's no question that he's thought probably in great detail about the power of the president.

So unlike Justice O'Connor, for example, or Justice Souter, who both came from the state court systems, this is someone who's thought about federal law a lot. So more like Justice Scalia, who hasn't shifted, and Justice Thomas, who hasn't shifted, and Chief Justice Rehnquist, who on hardly anything has shifted significantly, all three of those had a lot of intense experience with federal law in the executive branch of federal government. So I wouldn't expect this to be someone who would disappoint President Bush.

DAVIES: Well, Cass Sunstein, thanks so much for speaking with us.

Prof. SUNSTEIN: Thank you.

DAVIES: University of Chicago law and political science Professor Cass Sunstein. His new book is Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America.

Coming up, writer Steven Johnson says popular culture is making us smarter. This is FRESH AIR. Copyright 2005 WHYY, All Rights Reserved