Wednesday, September 21, 2005

Chief Justice John Roberts: Play Ball!

Commentary by David Reinhard


David Reinhard

The judiciary hearings reveal the nominee's case for judicial restraint and his view of the limited role of judges

Now, that wasn't so bad, was it? John Roberts spent four days before the Senate Judiciary Committee, and the nation saw that judges who favor the judicial philosophy set forth by President Bush are not a threat to all America holds dear. It's not clear the hearings changed any senators' minds, but they were a civics lesson on the proper -- read, limited -- role of judges, with professor Roberts instructing.

His only high crime and misdemeanor was unleashing a flood of senatorial baseball metaphors, and even this is forgivable. His opening umpire analogy clarified the philosophy of judicial restraint. Everyone agrees on Roberts' brilliance. Ironically, however, he minted the homeliest -- and, thus, accessible and effective -- metaphor to make the case for judicial restraint and his own confirmation. That's doubtless part of his brilliance.

"Judges are like umpires," he started off Monday. "Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . [I]t's my job to call balls and strikes and not to pitch or bat."

The umpire analogy couldn't have come soon enough. Many Democrats had devoted their opening remarks to disquisitions on the class and racial inequities laid bare by Hurricane Katrina. All this, we were told, gave added urgency to Roberts' selection.

Which might be true if he were running for Congress, the White House or state office. Or if he'd been picked to head the Department of Health and Human Services or FEMA. Or if the judiciary were the only branch of government.

What the hearings highlighted is that Democrats insist on seeing a seat on the court as a kind of tenured political office. They sought his personal views on certain issues. They wanted him to make promises on this or that legal issue. They were more focused on the "right" judicial result than Roberts' legal reasoning. They even wanted to know what was in his "heart" and "your feelings as a man" (Dianne Feinstein, D-Calif).

Joe Biden even managed to stumble into the "politician" metaphor. The Delaware Democrat likened nominees to senators who have to say "broadly and sometimes specifically to our public what we believe" to get elected.

But over four days Roberts rejected this distorted view of the judiciary. "Judges are not politicians. They cannot promise to do certain things in exchange for votes," he said. At another time, he explained:

"(M)illions and millions of people have voted for you and not one has voted for any of us [judges]. That means that you have the responsibility of representing the policy preferences of the people. . . . Our job is a very different one. We have to consider cases that raise the question . . . whether a particular piece of legislation is constitutional. And we have to limit ourselves . . . to applying the law and not . . . substituting ourselves for the policy choices you've made."

Right there is the modesty in judging that Roberts and other judicial-restraint advocates favor. They resist intruding on the legitimate prerogative of other branches Their charge is not to right all wrongs or to go forth in black robes and do good. "Judges don't have a license to . . . decide, 'I think this is an injustice and so I'm going to do something to fix it,' " Roberts explained. "That type of judicial role, I think, is inconsistent with the role the framers intended."

It is inconsistent because the framers understood that the federal judiciary, unlike the other branches, is unelected, unaccountable and, in so many ways, unrepresentative.

Again, the desire to correct crying injustices is a temptation for almost everyone. Super-smart people can reason themselves into almost any policy preference. The itch is even greater when you have a job with lifetime tenure and people call you "Your Honor." But, like most temptations, it should be resisted.

It's not always easy, as Roberts noted in responding to a senator who asked him if he was going to be "on the side of the little guy."

"Obviously you 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's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. . . . The oath that a judge takes is not that, I'll . . . be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States. And that's what I would do."

Thanks to last week's impressive -- and instructive -- hearings, that's what the brilliant and modest John Roberts would do as the Supreme Court's next chief justice.

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