July 26, 2005
Preliminary indications are that both we and Judge John G. Roberts may be spared the ugly food fights that confirmation hearings before the Senate Judiciary Committee can become. However, if Judge Roberts has ever been guilty of jaywalking, you can believe that some shrill special interest group will dig that up and try to make him seem like a threat to the republic.
Even if all goes well and Judge Roberts is confirmed, there are virtually certain to be liberal Senators trying to get his "views" on all sorts of issues and probably demanding confidential government documents that nobody is entitled to get, in order to dig deeper into his "views."
What makes all this a cheap farce is that the very Senators who demand to see confidential memoranda from John Roberts' days in the Justice Department know in advance that no administration of either party is likely to release such confidential material -- not if they ever expect people to speak candidly in the future when their advice is sought.
How important are a judge's views? The great Supreme Court Justice Oliver Wendell Holmes did not hesitate to express his views. In the case of Abrams v. United States, Holmes referred to the beliefs of the people on one side as "a creed which I believe to be the creed of ignorance and immaturity."
But that was the side he voted for. He understood the difference between his views and the law of the land. Too many other judges, too many politicians, and too many in the media, do not.
Justice Clarence Thomas has likewise expressed views contrary to the views of the side he voted for, both on the Circuit Court of Appeals and on the Supreme Court. He too understands that he is not there to impose whatever policy he prefers but, in Holmes' words, "to see that the game is played according to the rules whether I like them or not."
It is a disservice to the country to promote the idea that a judge's "views" on particular policies are what matter.
The idea that conservative judges will vote for conservative policies and liberal judges for liberal policies is the antithesis of what a judge is supposed to do. While some judges in fact vote largely on the basis of their own ideology or policy preferences, that is neither what they are supposed to do nor what all judges have done.
Justice Holmes became a hero to many liberals because his judicial votes on the Court were in several landmark cases in favor of many of the policies and practices that liberals believe in. But this was not necessarily because these were what Justice Holmes believed in. He was at least as conservative as anyone on the Supreme Court today.
What the Senators and the country are entitled to know is how a judicial nominee regards his duty to respect the law as it is written -- especially the Constitution -- rather than vote according to his own "views," whether on abortion, religious symbols, or whatever.
Ideally, judges should respect both the Constitution and the legal precedents, for the same reason -- people rely on the law as it exists when they make decisions and commitments in their lives.
Telling people after the fact that the law is now different from what it was when they made their decisions creates problems for people who acted in good faith. Even a Justice who thought that the 1803 case of Marbury v. Madison was wrongly decided is unlikely to want to overturn two centuries of precedents based on it.
On the other hand, some of the precedents created by judicial activists more recently have gone so completely counter to the Constitution that it is a judgment call whether all of those precedents should continue to be followed. Judges take an oath to uphold the Constitution, not to regard all precedents as set in stone forever.
Respect for the separation of powers should apply to all three branches of government. Senators have no right to try to extort a pledge from a judicial nominee to vote a particular way on cases he has not heard -- and that is what Senators are doing when they talk piously about a "right to privacy" or other buzzwords.