I've been following with interest the confirmation hearings for John Roberts to become the next chief justice of the US Supreme Court.
Some conservative groups reflexively got behind the president's pick and some liberal groups, like People for the American Way, opposed Roberts, almost the instant the nomination was announced.
While I don't agree with everything Roberts has said, I haven't heard anything from the judge that especially distresses me. It's pretty unreasonable to expect that a conservative president is going to nominate a clone of Justice Ruth Bader Ginsberg. Roberts is probably about as close to moderate as the president is going to appoint. Homogeneity doesn't make for good decision making anyway.
The whole process of holding hearings for judgeships raises a lot of curious questions. Many want Roberts to answer how he would rule on specific issues such as abortion. Others contend it would be inappropriate for him to do so because if he ended up hearing a case about that issue, he would be seen as already having made up his mind about the issue before hearing arguments. (Ironic since several Republican senators said they would vote for Roberts even before the hearings started)
Roughly this has meant Democrats wanting him to be more detailed and Republicans content with his vagueness, but even some Republicans were left frustrated by his lack of specifics on Roe vs Wade.
If Roberts is confirmed, he can theoretically serve as chief justice for the rest of his life. Little is known about him. He has been a federal judge for only two years. Many of the memos and briefs he wrote in the 1980s, he can quite reasonably claim he was representing not his views but those of the administration for which he was working. But if those views aren't his, then what are his views? If appointed, this man may serve 25 or 30 years if not longer. Given the significant power he'd have if confirmed, it doesn't seem at all unreasonable to ask how he might use that power.
On the other hand, a judge is not a politician. For all the whining about unelected judges, I am glad they are unelected. At least federal judges. Here in New York state, city judges, county judges and trial court state judges are elected. If you were accused of a some explosive crime like child molestation but were really innocent, would you want your fate by someone who has to face voters next month? Would you want your future decided by someone whose job depends on pandering to an angry mob? Or would you be more likely to get a fair trial with some 'unaccountable' judge?
I'm glad to know that Roberts acknowledges the existence of the right to privacy, the right upon which nearly all of the Bill of Rights is based ("The court has ... recognized that personal privacy is a component of the liberty protected by the due process clause."). Roberts believes that competent defense lawyers are essential to the legitimacy of capital punishment. Not an ideal position, since the very principle of state-implemented murder is illegitimate, but requiring such cases to subscribe to basic rules of fairness is a moderate improvement. At least the state can make sure it's murdering the right person.
I don't want Roberts to decide cases based on whether it pleases Ted Kennedy or Rick Santorum or 50.001% of the American people. I would like to have some idea of what his general philosophy is. He has said that he doesn't completely accept the notion of 'original intent' espoused by Justice Antonin Scalia.
'Original intent' means that the Constitution can only mean what its authors intended in 1787. By this standard, any Constitutional references to 'man' or 'citizen' must apply only to men (not women) and only to whites (because blacks were counted as 3/5 of a person and often treated as less). The 'original intent' interpretation would ban women from the presidency since Article II of the document consistently refers to the president as a 'he'; and surely the Founding Fathers did not conceive of female presidents so we must be subservient to 228 year old values now and forever more.
I am glad that Roberts distanced himself from this theory. 'Original intent' is certainly something worth considering in many cases but it should not be dogma. What James Madison would've thought shouldn't be the be all and end all.
On the other hand, Roberts' comment that "This body [The Senate] and legislative bodies in the states protectors of people's rights" is dubious at best.
Supporters say he is well-qualified. But what does 'qualified' mean in this context? He's only been a federal judge for two years so it's not like he has a wealth of experience in the profession. He is, by all accounts, extremely smart. But being a judge were simply about raw intelligence, they'd administer IQ tests instead of confirmation hearings. Even many opponents concede that he's qualified. But if he's qualified, then why do they oppose him?
Roberts has generally been pretty vague. This has infuriated Democrats but might end up hurting conservatives as well. Two of the most controversial justices of the last 50 years, Anthony Kennedy and Earl Warren, were both nominated by Republican presidents. Of course, it's just as conceivable he might become another Scalia (approved 97-0 to the high court by a Democratic-controlled Senate). But it's probably a smart strategy on Roberts' part. The fewer people he offends, the hard it is for critics to galvanize opposition.
I'd love to oppose him in a knee-jerk way before even hearing his side of the story; I'm a contrarian, after all. But I can't oppose someone merely because President Bush likes him. I've read Roberts' testimony and it paints a portrait of a moderately conservative man who I won't agree with all the time but who is highly unlikely to destroy the very fabric of the nation. Ideal? No. But Armageddon it ain't!
Democrats should save their fire in case, for the other empty seat, the president nominates Scalia Jr.
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