Trial lawyers interview prospective jurors in a process called voir dire (to say the truth). Panelists are sworn in as a group by the court to answer truthfully, and the lawyers have at them with questions. Usually the questions are posed in open court, but in some sensitive cases, such as those involving accusations of sexual misconduct, questionnaires might be used, and answers taken in chambers, under the direction of the judge and taken down by the court reporters.
One of the objections counsel might make to a question put by opposing counsel is that the question calls for the prospective juror to state an opinion as to a contested issue in the case. That's not allowed.
So counsel seek other ways to obtain information to help them guess whether the prospective juror is apt to vote for or against their side if chosen as a juror.
This is something like the process John G. Roberts must undergo before the Senate to see whether it will vote to confirm his nomination by Pres. Bush to the Supreme Court.
Ask him his attitude in general about preserving rights, respect for precedent, willingness or unwillingness to make groundbreaking law in an "appropriate" circumstances, but don't ask him whether he'll overrule Roe v. Wade.
How about a woman's constitutional right to obtain an abortion under Roe as reaffirmed by Casey. Is that a fair question? More to the point, how should Roberts respond to such a pointed question?
How about,
I'm not inclined to overturn existing precedent on which people have come to rely to arrange their lives without a compelling reason.
Beyond that I don't think it appropriate to say anything during confirmation proceedings that litigants are apt to take as a pre-commitment one way or another should the question come before the court if I'm confirmed.
Litigants, and the public, have the right to argue to a judge who has undertaken to eliminate previous attitudes amounting to a bias against rights that either exist or that litigants claim should be recognized.
Is that apt to be a sufficient answer?
Would you advise a candidate to say that?
Or something else?
What, exactly, should Mr. Roberts say in response to what may be questions that border on the improper?
If he's too protective, such that senators think he's being 'cute' or 'cagey,' he's going to lose votes on confirmation. Senators on both sides of the Culture War seek to prevent buying a pig-in-a-poke.
But the candidate must give them exactly that, otherwise he's so pre-committed that he's undercut his moral authority and has become a predictable vote before he even gets started. It's either that or he has to break an ill-advised promise if he wishes to function with an open mind. Why take the job if you can't do that?
The last thing a nominee should want to do is to pre-commit as to specifics. Justice Clarence Thomas professed essential ignorance of Roe v. Wade. It never came up in my practice or discussion, he maintained. I've got no position on it. Immediately he voted to overrule it. He was either ignorant or lying, and no one takes him for being stupid. So the Dems don't want another of those.
I should think that senators would wish to avoid forcing a candidate to face such a dilemma. It seems a foregone conclusion that a Republican president is going, and has the right, to select a Republican justice, which means some degree of conservative.
Just as surely, the Democrats have the right to try to block a candidate who seems too far out of the judicial mainstream, which can vary with the bend in the river.
Both sides are stuck with the idea that there is an element of chance in no matter whom they confirm.
The Dems risk another Clarence Thomas and the Repubs risk another Earl Warren, Harry Blackmun, Anthony Kennedy, or David Souter.
Not knowing anything about Roberts except what I've been seeing in the media for the last day or two, my guess is that he's not likely to be an ideologue such as Scalia or Thomas, but will want to figure things out for himself. He claims no over-arching, coherent or consistent, world view according to which every issue must be decided.
I don't think Scalia or Thomas can say that. They have a view of interpretation called originalist or textualist. If Roberts believed in these, I think we'd have heard about it by now. One of his good friends with whom he clerked for then Associate Justice Rehnquist seemed to offer some reassurance that Roberts was his own man, with a mind of his own, capable of figuring out how to decide cases without being rigidly doctrinaire. It was reassuring to me, at least.
Who would you rather appear before on a novel proposition? Roberts? Or, take your pick: Scalia or Thomas?
How about a proposition viewed by some as liberal or conservative?
Pro- or con- the interests of big business? Or big government?
In jury selection, the bottom line is where the juror swears s/he can be fair to both sides. Not all say this, as easy as it may be to spit out the words. Some say they can't be fair because of this or that and they're excused for cause.
Others lie to serve or to get off jury duty.
But a good number carry out their duties to their honest best, and that's what keeps the country, and the jury system, running as well as it does.
I think we have to trust that the process works reasonably well most of the time.
The president DID consult with senators of both parties. He could have chosen a lot more of an in-your-face candidate than Roberts.
By comparison, Roberts seems like a winner.
I hope that the Dems don't think they're either going to change Roberts's mind on anything of importance, or are going to find a better jurist out if they reject him.
Trial lawyers are always looking over their shoulders to see who else is out there in the main body of the court, ready to replace any panelist kicked off for cause or peremptorily. You take what you've got or you're liable to get someone you like a lot less.
Absent something terrible coming out, I'd stick with Roberts and tell the judge, "No more challenges from the defense, Your Honor."
Then we have a jury.
Bailiff, swear in the panel.
Now, let the trial begin.
Counsel, opening statements.
Do you have your first witness present?
Okay, First Monday in October.