Judging Roberts

Last week a family member of mine asked me what were my thoughts on the nomination of John G. Roberts to the Supreme Court. The short answer that I gave him at the time was that Roberts is the kind of judge one would expect George W. Bush to select. He's a pro-business, anti-choice Conservative who has worked for prominent Republicans his entire career. He appears, at least on the surface, to be a devoutly religious man and I think it's likely that he will share a similar view on the separation of church and state with Justice Clarence Thomas. Given that his wife was an executive member of a prominent anti-choice organization, I think it's likely that Roberts' personal view on abortion tends towards criminalization, at least in part. All in all, no big surprises.

And yet, the more I think about the nomination, the more I wonder about the propriety of it. I'm too much of a realist to believe that a Justice is able to completely set aside any political views in the interest of good jurisprudence. I would think that a given judge's political views and judicial philosophy would inform each other; just as my views on politics and accounting ethics are inextricably linked. Judge Roberts is a Conservative because of his judicial philosophy, not in spite of it. Thus, given that Roberts' judicial philosophy is likely linked to his politics, I find I have a problem with the nomination of such a staunch Conservative as a Supreme Court Justice.

In spite of what his supporters seem to believe, Bush does not just represent the half of Americans that voted for him in the last election. A Supreme Court nomination was never intended to be the spoils of an electoral victory. We are ill-served as a country when our Supreme Court becomes a political football to be thrown back and forth between the pillars of our two-party political establishment. This is why President Clinton, a legal scholar of no small merit himself, met with and garnered the approval of the Senate Judiciary Committee for both of his Supreme Court nominees.

I also take issue with the "stealth" tactic utilized by President Bush to circumnavigate the sort of Senate hearing issues that scuttled the nomination of Robert Bork. Roberts has so little experience as a judge that it is very difficult to find any written track record of his judicial philosophy. The reason the Bork nomination failed (and rightly so) was due to Bork's extensive writings as a legal scholar demonstrating a judicial philosophy that was, shall we say, unique in nature. By way of example, Bork suggested in his writings that the Congress be given the legislative power to overturn past Supreme Court decisions, thereby injecting partisan politics into the judicial process. This was something which the Framers of the Constitution were clearly trying to avoid. Roberts has so little written track record to speak of that it's difficult to really get a sense of just what is his judicial philosophy.

My third issue with the Roberts nomination, and I imagine I would have this objection regardless of nominee, is Bush's insistence on a "strict constructionist" interpretation of the Constitution. Make no mistake, when Bush says he wants a "strict constructionist" what he really wants is a judicial activist that will rule in his favor. If you have any doubt, just look to Bush vs. Gore in 2000, arguably the most activist Supreme Court decision of the modern era, and then listen for the chorus of outraged Conservative "strict constructionists" decrying the decision. Hear any? How about now? Hint: you'll be listening for a good, long time.
"Strict Constructionist" and "Judicial Activist" are political terms, similar to "Partial Birth Abortion" and "Death Tax". They are designed purely to convey a political stance and have nothing to do with the practice of law. All Supreme Court Justices base their decisions and opinions on their interpretation of the Constitution; that's their job. The Constitution was purposely written in a vague manner to give it the flexibility of a changing interpretation that allows our society to grow; that's its job. How set-in-stone can any document be that has been amended 27 times? Never forget as well: from a "strict constructionist" point of view we have no Right to Privacy and the federal government has no right to create a standing military.

Upon further thought, I find that when I look at John G. Roberts, I see a "made man"; a man with a custom-designed career path for a Republican appointment. I especially like the pro bono work he did for a gay rights organization; talk about a ready-made foil for liberal objections. Maybe I'm too cynical, but I see said pro bono work as an obvious strategic decision designed to derail future Democratic objections to Roberts' federal appointments. Roberts is clearly a brilliant man, a skilled lawyer and savvy political mind; thus, I have no problem believing he'd slip in a little work for a cause that runs counter to his personal moral philosophy in the hopes of making himself a more attractive candidate in the future.

To close, the more I think about Roberts, the more I believe his is a nomination that the Democrats should challenge aggressively. Too much of what I know about Bush's politics tells me that Roberts will be another "strict re-constructionist" in the same vein as Clarence Thomas. I, for one, am not inclined to see the country shifted judicially to a conservative religious paradigm nor do I wish to see a further shifting of power to corporate interests in the United States from a reinterpretation of New Deal-era understanding of the commerce clause.

If the Democrats roll over on Roberts, imagine what the next nominee will look like. Not a pretty picture...