Jewish World Review August 1, 2005 / 25 Tammuz 5765

Paul Greenberg

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It must be the heat: This nominee drives 'em crazy

http://www.NewsAndOpinion.com | In the strange fight over the confirmation of John Roberts as the next justice of the Supreme Court, perhaps the strangest comment yet had to be the one from Senator Evan Bayh of Indiana on CNN's Inside Politics:

"You wouldn't run for the United States Senate or for governor or for anything else without answering people's questions about what you believe. And I think the Supreme Court is no different."

Huh?

Being nominated for a seat on the Supreme Court of the United States is no different from running for the United States Senate or a governorship or anything else?

And because a candidate for the Senate or governor is expected to tell us how he feels about some hot-button issue — like abortion, for example — we should expect a nominee for the Supreme Court to do the same?

Of course not.

A nominee for the court shouldn't be taking stands on political issues precisely because he is not running for a legislative or executive office. Instead he's been nominated for a seat on the highest court in the land, and there is a difference, a big one.

Unlike a senator or a governor, a justice of the Supreme Court is sworn to do impartial justice. Which means he shouldn't even come close to prejudging issues that are likely to come before him.

If pressed, as surely he will be, Judge Roberts would do better to talk generally about the sanctity of the law regardless of his personal or political beliefs. Or about the importance of an independent judiciary, which means independent judges, which means judges who don't commit themselves to rule a certain way on abortion or anything else.

Here's how CNN's Dana Bash led Bayh (by the nose) into making that strange comparison between politicians who run for office on a political platform and judges who are appointed to lifetime terms, all the better to insulate them from political promises and commitments:

"Let me ask you about one other issue," began Bash. "And that is, of course, John Roberts, his nomination. Many Democrats want to use this to sort of illustrate the differences between the parties. Democrats want to ask specifically about abortion and other issues that could highlight social differences between the right and the left, if you will. Is that something that should be done through the Roberts nomination?"

"Well, I think it should," said Bayh, immediately equating the confirmation process with just another political debate.

From there it was a short, irrational step to concluding that, since both political candidates and judicial nominees are expected to discuss their core beliefs, there's really no difference between them:

"You wouldn't run for the United States Senate or for governor or for anything else without answering people's questions about what you believe. And I think the Supreme Court is no different."

Well, of course any senator has the right to ask any damfool question he wants to ask at a confirmation hearing, but that doesn't mean the nominee need be foolish enough to answer it. Indeed, a prudent nominee will find a judicious way not to. And surely Roberts, who's no slouch, will.

Because I have an idea that one of John Roberts' core beliefs is the independence and impartiality of the American judiciary.


The strangest thing about Bayh's strange comment is that it came from an ordinarily rock-solid, levelheaded Hoosier. And not from, say, Ted Kennedy. (The other day, Senator Kennedy warned that, if Roberts is confirmed as an associate justice of the court, it could mean the end of Medicare, Social Security and the minimum wage. Not to mention Western civilization in general.)

The only thing Bayh's comment establishes beyond doubt is that being interviewed on television can make even the best of us sound wacky. Maybe it was just the heat. That would be the charitable explanation.

Then there's New York's Charles Schumer, who's playing the role of (not so) Grand Inquisitor in these proceedings. When it comes to his respecting the independence and impartiality of the American judiciary fuhgeddaboutit.

At last count, Senator Schumer had drawn up a list of 87 questions he wants Roberts to answer, many of them dealing not with this nominee's general philosophy or approach to the law, but with specific issues that are bound to come before the Supreme Court.

For instance: "Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?" And so all too specifically on.

Why wait till a judge is on the bench to hear his decisions after careful consideration, due deliberation, written and oral arguments about the specific aspects of the case and all that rigmarole when a senator can pin a judge down beforehand?

The senior senator from New York would turn the confirmation process into a political swap meet. And what would be traded, if Charles Schumer had his way, would be the law of the land.

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It is Charles Schumer who really seems to recognize no difference between being confirmed to the Supreme Court of the United States and running for senator or governor, or maybe ward captain.


Let's not pretend that constitutional decisions are delivered by storks, through a kind of immaculate conception free of human prejudices and passions, but there is much to be said for maintaining the belief that justices of the Supreme Court follow the law rather than their own political predilections.

When a belief is respected, repeated and revered, it has a way of becoming practice. That is how myth becomes reality, and how each of us lives up to our better selves.

On the myth, the belief, the faith — call it what you will — that the Supreme Court of the United States is an impartial and uncommitted arbiter of American law rests the whole of its moral authority. To treat the confirmation of a justice of the Supreme Court as just another political horse trade is to demean not just the judiciary, but the Senate itself.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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