As this is written, there seems no doubt that the committee and then the Senate will confirm Judge Roberts’s nomination, probably, in the latter case, by a large margin. He is a stunningly intelligent lawyer who may well prove to be an excellent chief justice. The country will have to wait and see. But Senator Biden was right when he said that in approving his nomination the Senate is “rolling dice.” The Judiciary Committee allowed him to keep his jurisprudential convictions, if he has any, almost entirely hidden. The senators asked him to comment on very specific cases and issues, an invitation he steadily—though with at least one notable exception—refused. I believe he was wrong to refuse to answer these specific questions. His argument that it is unfair to litigants to reveal his present opinion of issues he might later confront is very weak. His honest statement of his present views would in no sense be a promise or commitment. He will have to consider arguments in specific cases before making a decision, and he will join a Court most of whose other members have publicly stated their opinions on many of the issues that will come before them without raising any question of fairness to future litigants, who must often argue knowing that certain justices are disposed to vote against them. His argument, moreover, wholly neglects a very powerful contrary consideration: that according to any plausible view of democracy the public has a right to know his views on matters affecting their fundamental rights in some detail before their representatives award him lifetime power over those rights.
more from The New York Review of Books here.