The Weekly Standard’s Terry Eastland does a nice job teasing out the impasse between judicial philosophies that informed the Senate Judiary Committee hearings on the nomination of John Roberts for Chief Justice.
On the final day of the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: “If you’ve made one point many times over . . . the course of the last three days,” he told the judge, “it is that as a judge you will be loyal and faithful to the process of law, to the rule of law.” But “beyond loyalty to the process of law,” he asked Roberts, “how do you view [the] law when it comes to expanding our personal freedom? . . . That’s what I’ve been asking.”
And so, in various ways, had Durbin’s Democratic colleagues been asking about such matters–ones “beyond loyalty” to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made “many times over.” Reframing the senator’s question so as to reach the core issue, Roberts said, “Somebody asked me, you know, ‘Are you going to be on the side of the little guy?’ And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that ‘I’ll look out for particular interests.’ . . . The oath is to uphold the Constitution and laws of the United States, and that’s what I would do.”
That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move “beyond loyalty” to the rule of law, if necessary, and seek to advance certain political outcomes–in Durbin’s question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result. Roberts will go not with the little guy because he is the little guy, or the big guy because he is the big guy, but with the guy the Constitution says should win. He’ll not look out for “particular interests” because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States.
[…]
There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law–the rules, principles, customs, practices, and understandings that define it–and must not allow the law to be infused with the judge’s own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts’s approach to judging.
This helps explain why Roberts refused last week to state his personal views, notwithstanding that previous nominees for the High Court, having stipulated that they weren’t talking about legal matters but their own views, have done precisely that. To preserve the integrity of the judicial process–to ensure to all, as he put it in his opening (and unscripted) statement, that “I have no [political] platform”–Roberts wanted to give no clue as to his own beliefs. “Just talk to me as a father,” Joe Biden asked him, wanting to know how Roberts might think about end-of-life decisions and whether government should be involved in them. “Just tell me, just philosophically, what do you think?” Roberts answered, “I’m not going to consider issues like that in the context as a father or a husband or anything else.” Only as a judge would he do so. Likewise with Dianne Feinstein, expressing her hope “to see your feelings as a man” (what else might he be?) on the same topic, Roberts declined.
Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham’s question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat–the “tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they’re going beyond the interpretation of the Constitution, where they’re making the law”–the province of elected officials. He observed: “Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I’ve said it before and I’ll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, ‘Let’s take all the difficult issues before us and let’s have the judges decide them.’ That would have been the farthest thing from their mind.”
The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance “progressive” visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary “in its established but limited place in American politics,” wrote Arthur M. Schlesinger Jr. in 1947. But Hugo Black and William O. Douglas aimed to settle particular cases, Schlesinger said, “in accordance with their own social preconceptions”–such that, as a Yale law professor of that era said, “the less favored in life [would] be the more favored in law.” By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin.
…And, to be fair, a few prominent social conservatives, as well—whose hatred of judicial activism, it would seem, extend only to hatred of judicial activism that doesn’t favor their particular social agenda.
To my mind, the only legitimate concerns a true conservative can have with Roberts, based on his confirmation hearing testimony, are that he sees in the Constitution an implied right of privacy (a debatable principle, though it’s worth pointing out that he doesn’t see a general right to privacy), seems to uphold an expansive view of the commerce clause (his one real drawback, from my point of view), and that, on at least one point, he may be a bit too conservative—namely, that he could prove overly deferential to the principle of stare decisis.
Still, any honest observer of the hearings on either side of the political divide who is committed to the prescribed role of the judiciary should, as Eastland notes, celebrate the sound “conservative” judicial principles that inform Roberts’ philosophy. Because those principles, it seems to me, are precisely the antidote to a judiciary that has trended increasingly toward supralegislatural impulses and political expediency.
Good comments; and Roberts’ steadiness in restating his adherence to the law is comforting. But I’m not sure if I understand the difference, in law, between a “general” right to privacy and an … um … “specific” right to privacy.
General: whatever the judge wants it to mean. Extra points for what the Supreme Court of Iran thinks.
Specific: what it says in those three articles of the Constitution that Roberts cited from which the right is inferred, and the jurisprudential precendent relating to those articles.
Jeff:
I’ll throw out the trump card to get things rolling:
But will that, i.e., Robert’s philosophy, get you to Brown?
The liberal (generally speaking) or “activist” (I know, a cliche) argument is that any judicial philosophy that doesn’t overturn Plessy is without merit.
That judicial restraint or doubt or whatever we wish to phrase it only works when the other branches are working. And that when, for whatever reason, a person cannot get adequate response to his complaints from city hall, that the courthouse must be open to his or her concerns.
It’s an immensely powerful argument for it has history on its side.
The danger in this view of the courts, of course, is that rights can contract as well as expand. That an unchecked judicary can take away or limit rights just as quickly as then can award them.
‘Course, whenever I bring that up to my liberal friends, they always respond, “Well then, that’s why we always need to have liberal judges to prevent such an occurrence.”
I have very smart liberal friends <g>.
SMG
SMG,
I may be wrong, but couldn’t one just say that Plessy itself was a wrong decision, and that Roberts philosophy wouldn’t have created that conundrum in the first place? I mean, why do you start after Plessy, and then begin applying his philosophy?
Or at least that’s my stab at it.
Jeff:
Bork has a brief explanation of how one could reach the result in Brown using an Originialist jurisprudence in his book The Tempting of America.
That last one from me was for SMG. My bad.
MG,
Your Liberal friends are not really smart. They are subject to a delusion. The delusion is that judges are superior beings who, when the other branches of government “fail†us can force society into the “correct†path. Since the judiciary is the least democratic branch of government, your liberal friends are demonstrably – at heart – anti-democratic. This is of course natural. The Left has, since the French Revolution, been the champion of tyranny and dictatorship; all, of course, in the interest of “the people.â€Â
In the United States, the courts have used up a great reservoir or good will and deference. That reservoir is not bottomless and the imposition the Liberal pieties via judicial fiat will have dangerous consequences. “Impeach Earl Warren†was the cry of a bunch of kooks in the 1950s and 1960s. A few more decisions like “eminent domain†and you may find a broad based revulsion against nine lawyers in skirts that may lead to widespread changes in the way judges are appointed and the powers they wield .
Just need to get this off my chest.
The libs are not trying to “win” this one, they are only interested in strengthening the American perception that SCOTUS nominees SHOULD be judged on political grounds, and not on their fitness and understanding of the LAW as a judge. With just a little patience, once they have established that point, they win. Imagine Henry Waxman as a Supreme Court judge, if you dare.
And how do the Republicans respond? By patting themselves on the back for being the majority, and throwing money away as fast as they can. “Be reactive” sems to be their creed. The left, meanwhile, is busy cutting the right off at the knees, and tap dancing on Bush’s face because they know that he will not bother to defend himself against anything they want to say about him or his policies (this makes me furious, I must say). I despair about Bush’s next SC pick, because the pansy Republicans are going to fold like a cheap camera once again. Jesus! Doesn’t ANYTHING piss them off?
Maybe I’m just tired tonight, but I have a feeling that the Republicans are in for a rude shock in the next two elections. But, you know, with the way they are acting, what’s the difference? I hope I am totally wrong because I don’t want my little boy growing up in a semi-fascist socialist state, but my despair is growing…
I really hope I don’t feel like this after a good nights sleep, but who knows? Maybe reason can still prevail…
I like the little guy big guy part.
Not too many people were concerned about
McCain-Feingold when all it applied to
was The “Rich” not that it gaves Soros much
pause, but when the FEC turned its beady little
eyes on the individual blogs?
By GOLLY some people started actually READING the First Amendment and guess what?
GASP it applies to ALL of us, rich or poor, littl or big, doesn’t matter, if they can take away a Rich Man’s rights, what gives folks the idea they cannot take away EVERYONE’S Rights.
We never learn.
First they came for the Jews, and I did not speak out – because I was not a Jew.
Then they came for the communists, and I did not speak out – because I was not a communist.
Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist.
Then they came for me – and there was no one left to speak for me.
New and updated version
When they came for the Fourth Amendment, I did not say anything – because I had nothing to hide.
When they came for the Second Amendment, I did not say anything – because I did not own a gun.
When they came for the Fifth and Sixth amendments, I did not say anything – because I had committed no crimes.
When they came for the first Amendment – I could not say anything.
Hey, and how about the rights not enumerated? There was a big stink about having a bill of rights at all, precisely because it was feared there would be dopes who would say our rights are limited to those spelled out in amendments.
I don’t recall much hue and cry against an activist judiciary on a certain recent case. And I seem to recall a lot of willful ignorance of the rules, principles, customs, practices, and understandings of the law with regard to that specific case. I am reminded of what a bad show that was from conservatives who ought to know better.
It seems nearly nobody wants the law when the law isn’t on your side of what you FEEL is right.
It disturbs me that extremes on both sides are clamoring for a man who will bend the law in the proper direction, to be ascertained by determining his FEELINGS. I want a man with the temperament and understanding of mind to put by his feelings and do his job and keep my liberty.
I want a man who knows where the constitution came from (dammit), who can determine when contrary law is undercutting the constitution, and understands the document’s core purpose is to preserve liberty, for ourselves and our posterity (and yes I can sing the rest of the schoolhouse rock preamble song.)
Now I’m all worked up to a nice froth. Three is a magic number never has this effect on me.
SteveMG:
Re-read Plessey v Ferguson. Especially read the dissent of Justice Harlan. That is how you get to Brown v Board of Education.
More the fool I for believing certainty is important in the law. So many want the judiciary to find something for them, hiding somewhere unseen in the Constitution. If the people want something that is not present in the Constitution (ie. abortion on demand, a defined “right to privacy”) THEN AMEND IT. If “privacy” is so goddam#’d important to everyone, then get a Constitutional Amendment written up and take it out there to get ratified. Instead we have sat back and let the entire Federal Judiciary become warped and distorted in its functions. Bah!
Major John-
You are so right.
But Major John, that would mean Congress would have to do something besides pork barrel campaigning! I mean you don’t expect these guys to actually work do you?
The Constitution was drafted as a means of governance with a nod to stating that citizens retain their liberty from government abuse of power. They enumerated some of these liberties and clearly stated in the 11th amendment that this list was not exhaustive, that liberty was granted by a higher power and not licensed by government. To me, the fact that the Constitution doesn’t explicitly state that I have a right to privacy doesn’t mean I don’t have such a right. My right to privacy predates the Constitution, is sourced by a higher authority, and as an inalienable right cannot be taken away.
That said, my right to privacy does not confer on me a shield against prosecution for criminal acts. It doesn’t mean that I can conspire with a third party to commit crimes and claim that since it’s done in private it’s constitutionaly protected.
If we fully exercise our second amendment rights, it should make the state thoughtful, at least, about infringing on our liberties.
Two points; 1-of course liberal activist judges can constrict rights, see the 2nd Amendment and the stripping of our right to retain arms in case a revolution is needed again, and 2-as to personal views, he should have responded that he’d like to see Congress pass laws that did x, y, z, but that it is not the place of the court to write laws and he wouldn’t create them from the bench to satisfy his personal views.
Major John,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
You know why they put that in there, don’t you?
And you know that law includes the full array of binding legal authority, such as constitutions, statutes, rules, regulations, common law, or other governmental actions having the effect of law? The right to privacy with regard to abortion is law NOW.
Obviously you don’t like it. I would assert that right to privacy exists and has always existed, but that’s kind of beside the point when it is settled law. If you want to change it, amendment seems like the only proper action.
Me, I’m currently hoping to get back the right to hold property even when powerful private interests want the government to take it from me and give it to them.
This is far too glib, and simply begs the question (which has obvious political implications) of what “law” is. Does the language of the text trump legislative intent? Is originalism compatible with democracy? Does the judiciary have the final say as to what the law is? Ejusdem generis or expressio unius? What is the content of the phrase “due process of law” as applied to traffic stops or military tribunals?
These are all legitimate and important subjects of debate, and it would be nice if we could have a hearing that actually adressed some of them, instead of idiot questions about Roberts’ feelings as a father, responded to with talking-point nonsense about calling balls and strikes.
Yes if the language does not match intent they did a lousy job and need to redraft it, try using the “intent” argument versus the language of the text argument on a contract and see how far you get.
The Constitution means what the Supreme Court says it does, that is why we do not need judges who add things because they “Should” be there.
What if “they” are dead? As in the constitution?
Sometimes you’ll get very far. The fundamental canon of contractual construction is to discern the intent of the parties. That’s the reason for the course of dealing and trade usage rules, among others.
Only because the Supreme Court said that in Marbury.
OK make that we instead of they the Constitution is not dead and it has provisions for Amendments.
27 at last Count.
Another they/we is Congress, but it should never be the Judiciary, they should admister the Law as it was written not as they think it “should” say.
As for Marbury versus Madison I guess it holds until the Supreme Court or an Amendment reverses it.
The danger of Judges ruling on what the Law should say instead of what it does say for the Greater Good is that we may not agree what the Greater Good is, Hitler and Stalin had some different ideas on that subject than I do.