Question Time for John Roberts

By Marc Stern

Published September 02, 2005, issue of September 02, 2005.
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Next week many Americans will be paying careful attention to the answers given by Judge John Roberts during his Senate confirmation hearings. This is to be expected, given the importance of the Supreme Court in the contemporary political constellation.

Jews are no exception. The list of subjects of interest to the Jewish community on the high court’s docket is a long one: church-state issues (aid to parochial schools, prayer in the schools, faith-based initiatives), religious liberty, abortion, international law (Holocaust survivors’ rights and international human rights), etc.

To help the Senate Judiciary Committee carry out its “advice and consent” function in connection with the nomination, many Jewish organizations (including my organization, the American Jewish Congress) are offering advice of their own, suggesting various lines of inquiry. Some of the suggestions are very specific: Do you support (or would you overrule) Roe v. Wade? What are your views on school prayer? Some are broader: To what extent would you bind yourself to existing court decisions? It is only natural that Jewish groups would seek to learn Roberts’s views on these subjects and want reassurance that he, as a Supreme Court justice, would not disappoint them, given that competing interest groups are doing the same.

When such inquiries are made in a sober manner, they have the beneficial effect of educating the public about constitutional law, its methods, certainties and uncertainties. Unfortunately, as a whole, the process is anything but sober. Even the matter of what questions it is appropriate for senators to ask a nominee has become the subject of fierce debate.

Interest groups from all points on the political spectrum are feverishly scouring Roberts’s record for even the smallest hint of how he might rule in some case or another, exaggerating the hint’s significance out of all proportion. Often this is done, not in the interest of honest inquiry, but rather to score political points or advance a group’s narrow agenda.

The consternation among some religious conservatives when it was disclosed that Roberts had once helped litigate a gay rights case involving the constitutional limits on the referendum process — not gay rights as such — is one example of this phenomenon. Another is the now-infamous television commercial from NARAL Pro-Choice America accusing Roberts of supporting violence against abortion clinics simply because he filed a brief with the Supreme Court arguing that a particular Reconstruction-era statute banning class-based violence — a statute with a long and convoluted history — could not be invoked against violent abortion protesters. The ad confused the cause of abortion rights with the scope of a particular statute.

Herein lies the dilemma of the confirmation process. It is a political process.

Lately conservatives have been calling for a de-politicization of the confirmation process. Rather than ask about a judge’s views on particular issues, they say, senators should focus on the nominee’s technical competence. But this cannot be the whole story either. First, so long as one of their own is in the White House, they are not calling for a de-politicization of the nomination process. Second, the president would not and should not appoint, and the Senate should not now confirm, a person who thought the Constitution did not bar racial segregation or that it privileged one faith over another. But if these are permissible inquiries, why not others, including abortion or gay rights, which for many are equally fundamental issues?

Still, demands that judicial nominees toe a certain line on particular issues also come with a high price. Elected officials can run on platforms of “read my lips”— no tax increases, no abandonment of Roe v. Wade, no foreign wars or no tolerance for terrorism. The very purpose of elections is so that the public can choose which policies the nation should follow.

The role of a judge, on the other hand, is not primarily that of a policy-maker. Though judges do make policy at the margins, their primary responsibility is to decide individual cases, with all their complexities, in accordance with the law. Law may not always be easy to discern, but neither is it infinitely flexible. A confirmation practice that makes judicial candidates behave like political candidates confuses the very different roles of elected officials and judges. No litigant should have his or her case decided by judges who are already publicly committed to some position or another relevant to the case at hand.

That’s why we need to return the process of judicial selection to its proper scope. But this cannot be done unilaterally and instantaneously. The federal judiciary as it exists now has been shaped, even distorted, by hardball political tactics. To return to a less politicized judiciary, both political parties, as well as the executive branch and the Senate, must change their ways. When presidents are less rigidly ideological in their nominations, the Senate, too, should be less ideological in its questioning of nominees.

A less ideological Senate would focus on broad theories and fundamental issues. The broad theories are matters of judicial methodology: Is the Constitution to be read only according to the intent of its drafters or by its broader purposes? What, broadly speaking, is the Supreme Court’s role in maintaining the separation of powers between Congress and the executive branch? What role is there for the courts in protecting individual rights against democratic majorities? As for fundamental issues, these include a fundamental commitment to equality (but not necessarily to every claim invoking the principle of equality), and general approaches, but not specifics, on fundamental issues such as abortion.

This, though, is all for the future, and for some better political world. For the moment, we must brace for an ugly and uninformative partisan squabble. It is not likely to be pretty.

Marc Stern is general counsel at the American Jewish Congress.

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