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Oliver Wendell Roberts
In a less nasty age, he'd be confirmed 100-0.
Saturday, September 17, 2005 12:01 a.m.
Watching Senators interrogate John Roberts this week, we kept wondering: Could all eight Democrats on the Senate Judiciary Committee really vote against someone with so much experience and legal acumen? Apparently they might, and if that happens it'll say far more about the state of our judicial politics than about Judge Roberts. Nowadays, Oliver Wendell Holmes would struggle to get Democratic votes.
No one doubts Mr. Roberts will be confirmed, especially after a performance this week that revealed as impressive a grasp of Supreme Court case law as any nominee has ever shown. Democrats griped that he didn't commit himself on assorted liberal precedents. But he was more forthcoming than Antonin Scalia, who was confirmed 98-0 in 1986, or Ruth Bader Ginsburg, who made it on a 96-3 vote in 1993.
Senate Democrats came at him fast and angry the first day, with the usual litany of charges that he was opposed to the rights of women, minorities, the poor, the environment, seniors, the disabled, et cetera. But Mr. Roberts so clearly rebutted the charges that by day two the Senators were barely hanging around to listen to anyone's questions but their own. On IQ points alone, it wasn't a fair fight.
None of this is to say that we ourselves are certain what kind of Chief Justice Judge Roberts is likely to be. He was noncommittal on Roe v. Wade, for the understandable reason that abortion cases will routinely come before him. While he called Roe a "precedent of the court entitled to respect," he refused to take Senator (and Roe champion) Arlen Specter's bait that it was a "super-duper precedent." It's entirely possible Judge Roberts's philosophy of judicial restraint will lead him to sustain Roe and its main successor, Casey, which in any case would require two other new justices to overturn.
This strange new liberal respect for precedent--stare decisis--is certainly amusing. Liberals are only too happy to embrace Lawrence (overturning state sodomy laws), Roper v. Simmons (banning the death penalty for juveniles) and numerous other decisions that have overturned well-established precedents in order to achieve liberal social policy goals. But when Republican nominees are before the Senate, the left suddenly declares that the only "genuine conservatives" are the kind who endorse all liberal precedents.
We remember when David Souter declared at his confirmation hearings that he was a follower of the late Justice John Harlan, the great dissenter during the Warren Court years. But once on the Court, Justice Souter quickly joined majorities willing to overturn all kinds of precedents he disliked.
Judge Roberts is not another Souter; he knows both the law and his own philosophy far better. But it is an irony that what he describes as his view of the "modest" role of judges in our system might lead him to shrink from overturning some liberal precedents. At least we're reasonably confident he won't use the "right to privacy" as a cultural sledgehammer to overturn state legislatures on abortion, gay rights and other social issues going forward.
Perhaps the most encouraging exchange of the week was Judge Roberts's reply to GOP Senator Jon Kyl on the growing trend in U.S. courts to cite foreign precedents to justify their decisions. "Domestic precedent can confine and shape the discretion of the judges," Judge Roberts said. "Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia, or wherever." Justices Stephen Breyer and Anthony Kennedy have been especially aggressive in pushing this foreign legal buffet line on the High Court. But we're glad to say it doesn't sound as if the new Chief will be joining them.
All in all, this week's hearings were useful in illuminating the real dividing line in our current judicial politics. It is between those who view the courts as another policy arm of government, as an engine of social change, and those who share Judge Roberts's view of judges as "umpires," not philosopher-kings.
On the coming vote, Democrats are conflicted. They know they can't beat Judge Roberts, but their interest groups are shouting at them to vote "no" anyway. They want a strong opposition vote to intimidate President Bush into believing that his next nominee will be defeated if he or she is a genuine conservative. On the other hand, some Democrats feel they'll be in a stronger position to oppose the next nominee if they can show they voted for this one.
There's always the radical concept of voting for Judge Roberts on the merits, which should yield a 100-0 vote. As for Mr. Bush, the lesson is that a nominee of superior ability and character can prevail even over the fever swamps of modern judicial politics.
Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.
Kathianne said:http://www.opinionjournal.com/weekend/hottopic/?id=110007277
Nothing moe to say. The most that the 'left' can come up with, is that he 'had it too easy.'
