Cass Sunstein's piece in the WaPo today contains generally good ideas on how to question Judge Roberts in his nomination hearing:
For example, Roberts is perfectly entitled to decline to say whether he would vote to overrule Roe v. Wade. But does he believe that the Constitution protects a general right of privacy? Judge Robert Bork, along with many others, has insisted that the Constitution protects no such right. This position would require the court to overrule cases recognizing the right to use contraceptives, to keep medical records private and to live with members of one's family. Does Roberts accept the privacy right?
And the question should be worded similarly. 'Do you accept a right to privacy? Because a lot of the freedoms we take for granted depend on it -- like the right to keep our medical records private, the right to use contraception, not to mention abortion rights. I would certainly hope, Judge Roberts, that you believe that the Constitution protects such basic freedoms.'
The trick, of course, is framing the question so that Roberts looks either mean-spirited by giving the conservative answer or sneaky by giving a non-answer. Hence, a question like this wouldn't work:
The Constitution does not explicitly forbid the national government from discriminating on the basis of race or sex. Nonetheless, the Supreme Court has read the Constitution to ban both forms of discrimination. Some conservatives disagree; they think that the Supreme Court has no legitimate basis for prohibiting either racial segregation or racial profiling at the national level. What does Roberts think about the question of whether the national government can engage in discrimination on the basis of race and sex?
Because Roberts would say, 'yes, of course the Constitution bans discrimination on the basis of race and sex.' And thought there might be a series of follow-up questions, the 'yes' is all you would hear on the news.
In my opinion, the media-strategic aspect of these confirmation hearings should not be underestimated. If Roberts is really as even-tempered and level-headed as everyone thinks he is, the challenge for Democrats will be to find a way to not let him come across like that.