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By Carol Platt Liebau Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Here, left wing law professor Cass Sunstein weighs in on what he believes the Judiciary Committee should ask Judge Roberts.

Some of his suggestions aren't half bad. I'd be interested to know what Judge Roberts thinks about originalism, and what he believes constitutes judicial "activism" (to me, it's not simply a matter of whether one votes to reverse precedent. It's whether one is trying to impose by judicial fiat revolutionary policy and political changes that are contrary to the expressed wishes of the country).

More generally, it would be wonderful for the hearings to be a learning opportunity for all of us. Republicans and conservatives shouldn't fear this prospect -- they should welcome it. It's been far too long that liberals have acted as though some of their very radical constitutional interpretation is simply the "mainstream." And with his intellect, his cool head, and his vaunted ability to answer even the toughest questions cogently, Judge Roberts would be the perfect man for the job -- if he chose to do it.

To take one example: We tend to believe that the original intent of the founding fathers matters -- and are less likely to be of the view, as Sunstein delicately puts it, that the "meaning of the Constitution evolves over time." For if that's the case, who's to decide what the meaning of the document is? Nine unelected judges? That's called oligarchy. No, there's no need to fear -- if our positions are properly explained -- that the majority of the country is against us.

One final note: Sunstein loses all credibility at the end of the piece when he aruges that:

But Justices David Souter, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer -- to name just four -- provided answers that offered strong indications about their most fundamental beliefs.

Ruth Bader Ginsburg??? She refused to answer so many questions that no one learned anything through her hearing (although everyone knew she was a hard-core lefty even before it). And as for David Souter -- if his answers had provided any indication about what he turned out to be, scores of Republicans would have voted against him . . . and Teddy Kennedy would have supported him.