On John Roberts and the Supreme Court

Because of the impending cases related to marriage, family, and the civil liberties inherent to each, I thought it would be appropriate to write about my thoughts on Roberts and the Supreme Court in general. Sorry it turned out so long, but I wanted to fully convey my stance.

Make no mistake. I am a liberal democrat who usually supports the liberal agenda and liberal causes, but I must respectfully disagree with many liberals who oppose the appointment of John Roberts to the Supreme Court. The reason is simple: Seats on the Supreme Court are not political positions, and they should not be addressed as political positions. We should not support or oppose nominees in the same way that we support or oppose political candidates (i.e. their stances on various issues) because judges and elected officials have two completely different charges.

Of course, I'm not naive enough to think that politics do not come into play when selecting justices or even in the justices decisions once they are on the bench. That is where the imperfections in the system lie. But that does not mean that we should usher in full-scale political involvement into the process. They are charged with the duty to remain politically neutral when hearing and deciding cases, regardless of their personal beliefs.

Maybe I should explain where I'm coming from. The Supreme Court was originally designed, and still largely exists today, as an independent moderator of law and policy. They are not elected, at least in part, because it does not matter what their personal views are. Their past writings and decisions are irrelevant. The only thing that matters is how they came to their decisions. Did they use clearly articulated legal precedent? Were their rulings appropriate given the statutes and the cases presented to them? When selecting a Supreme Court nominee, your agenda should be to choose someone who will interpret the law (specifically, the Constitution) as objectively and clearly as possible, with no regard to personal beliefs (acknowledging that this is an ideal, not real, circumstance). Ideally, the Court should not lean left or right on average, but be right in the middle, which is where the existing law is, whether the law is right or wrong.

I think Sandra Day O'Connor is an excellent example of this. She was a relatively conservative justice nominated by a conservative president who turned into a moderate judge. What changed? Did she change her beliefs? Maybe, but it's not likely. Rather, the kinds of cases she saw and the decisions she came to were guided by her attempts at objectively interpreting the Constitution, not what she may or may not have believed.

On the other hand, however, is Antonin Scalia, who seems to put his personal beliefs into every decision he writes. I sometimes wonder if he has even read parts of the Constitution. When Roberts was nominated for Chief Justice, I initially wondered why Bush hadn't nominated Scalia. He certainly would have had a "conservative activist" where he wanted him. Then I realized that Scalia would never have been confirmed. He is an obivous example of a juctice whose personal beliefs influence his decisions, and everyone knows it. (He might not have been confirmed for Associate Justice at all if the confirmation of Rehnquist for Chief Justice hadn't taken all of the national attention and scrutiny.)

What especially irritates me about the opposition to John Roberts's nomination is that many opponents are bringing up briefings and other writings from his days as an attorney as "proof" that he is unfit to serve on the Court. I don't think that should hold too much weight because the job of an attorney and the job of a judge are completely different. The attorney has an agenda to prove their case at any cost. They are allowed, even encouraged, to use their own beliefs and personal investment in cases. Judges, however, are charged with the duty to be neutral. They must interpret the law and rule on what is written, not what they believe.

As far as I can tell, Judge Roberts has done a very good job of showing that despite his conservative personal beliefs, he does his best to decide each case based on the letter of the law. I certainly have no reason to believe this would change when he is confirmed by the Senate. He will not be indebted to Bush, Delay, or any sort of constituency, although I'm sure Bush would prefer to have some sway with Roberts on the Court.

Of course, I could be completely wrong. All of us could be. In the end, you can't get a good idea of what kind of justice a particular nominee will be until he or she gets on the court. (Just look at David Souter and Anthony Kennedy as examples of justices that turned out to be very different than originally believed.) Their past decisions can only tell you how they came to their decisions, which is the most important information. The good justices try to temper their personal beliefs. Yes, John Roberts' personal beliefs are much more conservative than my own, and he isn't my first choice for a justice, but what kind of nominee did we expect with Bush as president? I just hope that he will temper his personal beliefs as he interprets the Constitution, and his confirmation hearings lead me to believe he will do so better than most. Besides, he is replacing arguably the second most conservative justice on the bench (Rehnquist-- Scalia being the most conservative). The real concern is over who will replace the moderate O'Connor. Will the Court's centrist bloc continue to grow (as it should), or will it begin to move to the right (or even the left)? Only time will tell.