Bye-bye civil liberties, it was nice to have a few of you for a while

From Salon:

So that leaves two important questions: Will the Democrats insist that Roberts be forthcoming about his personal views on important constitutional questions? And how will Roberts respond if they do?

Robert Bork was defeated for confirmation to the Supreme Court in 1987 largely because of the extreme conservative views he expressed, views that senators considered outside the mainstream of American legal thought. This has led to the nomination by conservative Republican presidents of so-called stealth nominees, individuals -- like Roberts -- with fairly thin paper trails. But given all that is at stake -- and the Democrats' long preparation for this moment of O'Connor's retirement -- that may not be good enough this time. And Roberts may find himself having to be more forthcoming at his confirmation hearing than he would like.

If Roberts is as conservative as some believe, that could put him between a rock and a hard place. And while the next few days will see deeply detailed analyses of all his writings, there is at least one tea leaf among his judicial opinions that suggests that he may hold such deeply conservative views.

Last year, in Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts wrote an opinion upholding the arrest of a 12-year-old girl for eating a single French fry in a Washington, D.C., Metrorail station while on her way home from junior high school. As the court described, the "girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later." Except for the time she was being fingerprinted, the girl remained handcuffed with her hands behind her back until she was released.

Roberts concluded that the arrest and detention under a mandatory arrest policy for minors was not an "unreasonable" seizure under the Fourth Amendment to the Constitution, even though adults found to have violated the same no-eating-in-the-Metro ordinance were simply given citations. For obvious reasons, this decision is likely to be a point of some contention in Roberts' confirmation hearing. But of more significance than the decision itself is a part of its reasoning.

Roberts wrote that the Metro's mandatory arrest policy was not unconstitutional in part because it would not have been "regarded as an unlawful search or seizure under the common law when the Amendment was framed," that is, under the law as it stood in 1791. He described this inquiry as "the usual first step" in assessing Fourth Amendment cases, but really it is not. Instead, it is part of an approach to the law put forward by Justice Scalia, one that has been used inconsistently at best by the Supreme Court, garnering a clear majority's support in only one Fourth Amendment decision. It is an approach that would in essence freeze our rights as they were in 1791. And it is contrary to a great deal of modern Supreme Court case law that is dear to most Americans -- from protection against wiretapping to protection of the right to choose.

Why Roberts chose this approach and whether he indeed supports this narrow type of history-based constitutional interpretation of course remains to be seen. But what his approach is to interpreting the Constitution may well turn out to be the critical question in his confirmation hearings -- not whether he is adequately accomplished. This is largely because of the way in which President Bush has gone about choosing all his previous judicial nominees. And it means the ball is firmly in the Democrats' court.