CBS News legal analyst Andrew Cohen vented yesterday on CBSNews.com about how mum John Roberts has been during questioning, refusing to take the bait on hot-button questions posed by liberal senators. But in doing so, Cohen gives away his bias: he'd prefer a Supreme Court justice who believes in judicial activism, rather than judicial restraint:
Roberts took the so-called "Ginsburg Test" for refusing to answer Committee questions — dubiously named in honor of the 1993 Court nominee, Ruth Bader Ginsburg — to a new extreme.
He invoked it so many times, and in such an eager fashion, that they ought to do a Saturday Night Live Skit about it — a guy gets asked if he wants fries or a salad and he answers that he isn’t comfortable answering the question because it eventually may come before the Court.
To Republicans on the panel, Roberts was happy to expound upon all the many things a judge must not do, or say, or think, or resolve, when it comes to the law. He was happy to talk about how and why the judiciary must often and typically be a passive partner in the dance between governmental branches.
He thus gave succor to those on the right who hope that the newly-constituted Supreme Court will be less reluctant than its predecessor in striking down Congressional legislation or in challenging the authority of the executive branch.