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September 19, 2005

They just don't get it. . .

After three days of watching Judge Robert's Senate confirmation hearings (at least from time to time), I've come to the conclusion that the Senate Democrats just don't understand (or believe) what Roberts was trying to tell them.

Watching senators tie themselves in knots trying to get Roberts to tell them how he really felt about some issue or another, it became obvious that they didn't believe Roberts was sincere in asserting that it didn't matter what he personally thought about substantive issues. They assumed he was just stonewalling them with his view that a judge's job was to decide cases based upon the constitution, law, precedent, and the arguments presented by the parties, not on his or her personals beliefs or preferences.

Why couldn't they believe him? Perhaps because they are all politicians: people who have a strong sense of the rightness of their own opinions and an even stronger desire for the power to turn those opinions into law. Perhaps, like most folks, they just assume that everyone else is just like them.

What most impressed me about Roberts, other than his intellect, of course, was his humble attitude towards the power of the judiciary. As he said, "nobody comes to the ball park to see the umpire." To me, this willingness to embrace the concept of a limited role for the judiciary was the clearest argument for putting him on the bench.

As Plato wrote in The Republic, explaining the role of his ideal philosopher-kings:

 . .  then let those who still survive and have distinguished themselves in every action of their lives and in every branch of knowledge come at last to their consummation; the time has now arrived at which they must raise the eye of the soul to the universal light which lightens all things, and behold the absolute good; for that is the, pattern according to which they are to order the State and the lives of individuals, and the remainder of their own lives also; making philosophy their chief pursuit, but, when their turn comes, toiling also at politics and ruling for the public good, not as though they were performing some heroic action, but simply as a matter of duty . . . [Emphasis added]

Plato meant that ideal leaders do not seek public office to obtain power or glory, but rather reluctantly accept their responsibility out of a sense of duty. This disinclination to exercise power, to refrain from putting your judicial thumb on the scale of justice to tilt in favor of what you personally feel is morally correct -- rather than what the Constitution, law and precedent require -- is completely foreign to most politicians. If this attitude were made a requirement for membership in the US Senate, I doubt it would be possible to fill a committee table, let alone obtain a quorum.

Since Roe v. Wade, if not before, our Supreme Court justices have allowed themselves to become a super legislature, with the power to create new laws out of whole cloth. As Justice Rehnquist wrote in his dissenting opinion in Roe:

 . .  If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. [and would therefore be unconstitutional under the due process clause of the 14th Amendment] But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

Deferring to the judgment of others on issues where you have the power to act unilaterally is not easy. It is particularly difficult for brilliant, ambitious lawyers at the pinnacle of their profession who also feel strongly about the questions that come before them. The temptation to "do the right thing" in a given case, regardless of law or precedent, must be immense.

But by failing to restrain their collective impulse to advance what they saw as justice into an ill-defined area of the law, Justice Blackmun and his colleagues did the Court and our country a grave disservice. While I personally believe that their decision to allow abortion during the first trimester and to prohibit it after the fetus becomes viable was good public policy, this view remains highly controversial, even 30+ years after Roe. More seriously, controversy over abortion rights has helped to politicize the Court and reduce the level of civility in our political system. Even worse, by providing ideological cover for other activist judges, the Court helped precipitate rulings like the recent Massachusetts Supreme Court's decisions on the "right" to legalized gay marriage.

Our courts, with judges appointed for life and their reliance on precedent, are not a good place to work through controversial social issues. Far better to leave the social engineering to the legislatures, who can later go back and repeal their mistakes. Hopefully, with a few more judges who have the self discipline to restrain the impulse to legislate from the bench, the Court can return to its traditional role of calling balls and strikes rather than stepping up as the designated hitter for the natural justice team.

After all, if we had wanted to adopt a system of government where people with lifetime appointments decide all controversies according to what they believe is right, we would never have rebelled against the monarchy.

September 19, 2005 at 05:00 PM | Permalink


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