In this period of tense positioning before John Roberts’ confirmation hearings, the most critical point of debate is what questions senators will or will not be able to demand Roberts to answer. In his 2003 hearings before being appointed to the D.C. Circuit, Roberts proved a master of the dodge:

Thank you, Senator, and I appreciate the opportunity to address the question again. I want to be responsive, but at the same time, I think it is important that I avoid doing anything that is going to be harmful to the Federal courts as an institution. I did get a copy of Professor Gillers’ letter [that the question didn’t violate judicial ethics] just before the start of the hearing and looked at it, and I think it is important you said that other [Republican] Senators have asked these kinds of questions. One of the things I did in preparing for this hearing was go back and look at Justice Ginsburg’s hearings. And she on numerous occasions said it would not be proper for her to comment on particular Supreme Court precedents. She was asked by Senators on both sides of the aisle, and she said she was religiously adhering to that guidance because she thought it would be harmful to the Supreme Court for nominees to answer those kinds of questions. Now, let me just explain briefly why I answered–

Senator SCHUMER. Give me an example of one of the questions that she refused to answer. Are they similar to these or were they more specific?

Mr. ROBERTS. They were more specific in that they identified particular cases.

Senator SCHUMER. Exactly.

Mr. ROBERTS. I don’t see a principled distinction. It seemed to me if you are able to say I disagree with this binding Supreme Court precedent and here is why, I don’t see how that would prevent anybody from then saying, all right, well, what about this one? And you are going to have your list of ten cases you want to know about, and Chairman Hatch is going to have his list of ten cases. And the reason Justice Ginsburg gave for—I don’t know about technically whether it violates an ethical standard or not, but the reason that she thought it was inappropriate to answer that question is because it is an effort to obtain a forecast or a hint about how a judge will rule on a particular case.

And so on. This line of questioning about questioning continued for some time, with the dodges becoming more and more complex, until Orrin Hatch (R-UT), then judiciary chair, had to intervene:

Now, look, I have a lot of respect for Senator Schumer. We are good friends. He is a smart lawyer. He is very sincere. He comes to these meetings and he asks questions. Most of them, I believe, are very intelligent questions. Some, I totally disagree with. Some, I think, are dumb-ass questions, between you and me. I am not kidding you.
[Laughter.]
Chairman HATCH. I mean, as much as I love and respect you, I just think that is true.

Senator SCHUMER. Would the Senator like to revise and extend his remarks?

Chairman HATCH. No. I am going to keep it exactly the way it is. I mean, I hate to say it. I feel badly saying it, between you and me, but I do know dumb-ass questions when I see dumb-ass questions.
[Laughter.]

The question that all the questioning was about, by the way, was to “identify three Supreme Court cases of which you are critical” and that haven’t been reversed. Roberts’ written response was that answering such a question would be an effort “to find out how [he] would decide a particular case.”

But that’s not right. Of course the entire process is to try to get a sense of how a judge would decide future cases in general — by whatever metric you prefer — but there are no particular cases involved. An example of a particular case would be one that’s floating around in lower courts, involving real plaintiffs, defendants, facts, etc. The particular case of, for example, Roe is ancient history. The Constitutional principles established in it are not, and they are certainly fair and vital topics of questioning.

And it’s interesting that Roberts, whose stark and professional vapidity in the 2003 hearings had him leading senators down the rabbit hole of what is a question, what kinds of questions can be asked, etc. — it’s interesting that his example was Justice Ginsburg.

As the National Women’s Law Center reports, Ginsburg actually answered a hell of a lot. (Via ACS Blog.)

Here’s Justice Ginsburg’s response to then-Senator Hank Brown’s question about the constitutional underpinnings of the right to choose:

“[Y]ou asked me about my thinking about equal protection versus individual autonomy, and my answer to you is it is both. This is something central to a woman’s life, to her dignity. It is a decision that she must make for herself. And when government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”

And here’s her answer to a question by Senator Leahy about whether there’s a constitutional right to privacy:

“There is a constitutional right to privacy which consists I think of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment, that is the government shall not break into my home or my office, without a warrant, based on probable cause, the government shall leave me alone. The other is the notion of personal autonomy, the government shall not make my decisions for me, I shall make, as an individual, uninhibited, uncontrolled by my government, the decisions that affect my life’s course.”

Indeed, the Judiciary Committee’s report on the Ginsburg nomination concluded that “the committee knows far more about Judge Ginsburg’s views on reproductive rights than it has known about any previous nominee’s. Judge Ginsburg’s record and testimony suggest both a broad commitment to reproductive freedoms and a deep appreciation of the equality and autonomy values underlying them.”

Roberts has said he again intends to study previous confirmation hearings before answering senators’ written questions — we encourage him to revisit the Ginsburg hearing and try to at least match her level of candor and honesty.