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Jewish World ReviewAugust 1, 2005/ 25 Tammuz, 5765

Nat Hentoff

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The misrules of judicial confirmations | President Bush will most likely soon have another Supreme Court nomination before the end of his term. So, while partisan senators battle over the nomination of John Roberts Jr., we, as Americans, should question the frequent misunderstandings of the constitutional role of the Senate to advise and, maybe, consent to the president's choices.

One of the more fatuous instructions to the Senate Judiciary Committee is a July 17 lead editorial in The New York Times, "The Right Kind of Justice." Before Roberts' nomination was announced, The New York Times demanded that, "senators should be pressing the president to choose a candidate who reflects the philosophy of the vast majority of Americans."

First of all, where in the Constitution is the requirement that any federal judge must mirror "the philosophy of the vast majority of Americans?" The New York Times gives no clues about how to determine the "philosophy" of most Americans. Do they mean first hiring a grand consortium of pollsters? If so, how would this question be phrased to the citizenry? What would be the definition of this majoritarian "philosophy" to guide the senators in confirming a judge?

Let's suppose, however improbably, that this challenge could be met and Sen. Charles Schumer (D-N.Y.) will finally be able to tell us, with specificity, how he decides whether any judicial nominee is "out of the mainstream," and is thereby to be tossed aside as flotsam.

If, however, a majority of the Senate eventually agree that a judicial nominee must reflect most Americans' philosophies, a stern voice of one of our founders, James Madison, may be summoned by a nonpartisan historian of the creation of the Constitution and its Bill of Rights.

Madison, a principal architect of the document that distinguishes us from all other countries, warned that our "great rights" must be protected, particularly in times of fear or runaway partisanship — against the storms of shifting popular tides. The greatest danger to our liberties, Madison said, is to be found "in the body of the people, operating by the majority against the minority." Schumer's "mainstream" can run us aground on the shoals of mass apprehensiveness.

Were I on the Senate Judiciary Committee, I would ask a nominee's reaction to Madison's concern about judicial independence when confronted by marauding majoritarianism. Schumer has another question for these confirmation hearings that is shared by many senators on both sides of the aisle. Quickly, after John Roberts Jr. was nominated to the Supreme Court, Schumer, with his customary graciousness, presented him with an extensive list of questions the senator intends to ask him during the hearings. This was one of them:

"Is it appropriate for the Supreme Court to overturn a well-settled, precedent, upon which Americans have come to rely?"

Do you think that Schumer had Roe v. Wade in mind? But the actual pertinence of the question may have escaped the senator. For many years, racial segregation, both before and after the Civil War, was a well-settled Supreme Court precedent. So was the denial of the vote to women. Will Schumer include those, and other such precedents, in addressing this question to Roberts?

A number of organizations that press the senators to adhere to their criteria for confirming federal judges insist on diversity — diversity of race and gender — as qualifications for the bench, especially for the highest bench in the land.

In the July 22 Newsday, the celebrated Anita Hill — now a professor of social policy, law and women's studies at Brandeis University — wrote an Op-Ed article about John Roberts' possible ascension: "Nomination a step back for diversity." This nomination of Roberts, she said, with his "very narrow and elite credentials," does not "reflect the experiences of the vast majority of Americans." She does not specifically mention the experiences of blacks, but some younger readers may not remember that despite Anita Hill's strenuous attempt to disqualify him, Clarence Thomas sits on the Supreme Court. She does ask: Why "not nominate the first Latino to the court" or "a woman" to replace outgoing Justice Sandra Day O'Connor?"

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Justice O'Connor herself also seems to have forgotten her own words. I remember hearing her powerful speech years ago in which she insisted you should not be able to tell whether the opinions of a competent judge are that of a man or a woman. But she recently expressed regret, despite her admiration for Roberts, that a woman was not chosen to replace her.

Such demands for "diversity" invite adding religion, class and other categories to come.

I have none of the above qualifiers for John Roberts Jr., and will wait for the hearings to see whether my questions are asked — and how they are answered. Mine will begin with how deferential does he believe the Supreme Court should be to presidential powers in a time of war, based on his recent District of Columbia Circuit Court agreement in Hamdan v. Rumsfeld, denying constitutional protections, especially due process, to detainees at Guantanamo Bay.

His role in that ruling, and other rulings on, for example, the Fourth Amendment will speak more to his performance in the nation's highest court than will any regard to his gender, race or religion.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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