Jeffrey Rosen has the the premium space at the NYT Magazine this week, and he has some advice for Democrats and Republicans who will question Judge Roberts:
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.
To judge from comments in the press from Senate Judiciary Committee members, the same sort of myopia may characterize the Roberts hearings. That would represent a missed opportunity: in the next 10 or 15 years, as technology and science continue to advance and America’s demographic profile continues to change, the Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon…
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.
He has a point, and the entire article is well worth a read.