Umpires

With a firm Republican majority in the Senate, the confirmation of Judge John Roberts as chief justice of the Supreme Court is a fait accompli.

Roberts’s performance before the Senate Judiciary Committee was lauded as brilliant by his advocates and as evasive by his critics. Perhaps brilliantly evasive is the best way to characterize his vague and incomplete answers to questions about his judicial philosophy. Nimble equivocation, however, is not a measure of intellectual brilliance, let alone judicial temperament. If one of the purposes of the hearings was to inform the American public about the philosophy and moral convictions of a man who might preside over the Court for decades, it failed.

Admittedly, the political etiquette of recent Senate confirmation hearings has not allowed for much candor from nominees. Even by those standards, though, Roberts was exceptionally taciturn. As the nominee of an administration that fights every disinterested effort to inform the public of its actions, Roberts’s circumventions fit a disturbing pattern of presidential arrogance and manipulation, as did White House refusal to release Roberts’s writings as deputy solicitor general in the first Bush administration. It appears not to have occurred to the president and his staff that it would have been good for the nation to hear what Roberts thinks about the broad constitutional issues he is likely to confront as chief justice.

The performance of Democrats on the Judiciary Committee was not much better. Repeatedly their questioning attempted to get Roberts to reveal his position on Roe. Defending Roe’s unrestricted right to abortion-and the implausible legal reasoning justifying it-has helped turn Democrats into a minority party. Is Roe really where Democrats want to make a stand? Even when the result of being shackled to Roe is allowing Republicans to turn the Court into a safe haven for corporate interests and states’ rights? Truth be told, nothing would benefit the Democratic Party-or the nation-more than for Roe to be reversed and abortion law returned to the state and federal legislatures. That fact seems to be an open secret of which only the Democrats remain ignorant.

Where will the new chief justice lead the Court? Roberts insisted he is no “ideologue,” that he approaches judging on a pragmatic, case-by-case basis rather than from some comprehensive philosophical perspective. He assured senators that the legal opinions he wrote while serving in the Reagan administration that opposed the expansion of the Voting Rights Act and laws ameliorating gender discrimination were the advocacy of a lawyer for his client, not his own views. What those views were, or are, Roberts declined to say.

Roberts’s demurrals were implausible. However amiable a person he may be, there is no doubt that he is a man of deep conservative convictions. It is unfortunate that Roberts did not defend the opinions he formulated as a young government lawyer. As he hinted, the wisdom or legal justification for busing or affirmative action is not self-evident. It would have been good for the nation to hear what and how its future chief justice thinks about such issues.

President Bush promised to appoint judges committed to “judicial restraint,” and that is exactly what he has done. There is little doubt that Chief Justice Roberts will narrow the reach of the federal government, look skeptically at expanding individual rights, and defer to presidential power. Asked how “compassion” should influence a judge’s decisions, Roberts memorably told the committee that if the Constitution says the little guy should win, then the little guy will win, but if the Constitution says the big guy should win, then the big guy will win. As Roberts said, he sees the role of judge as analogous to that of an umpire: judges enforce the rules, they don’t write them.

But Roberts’s analogy limps. When it comes to the Supreme Court, the umpires are often involved in creating the rules. Moreover, as anyone who has played baseball knows, the business of calling balls and strikes is as much an art as a science. Personality and temperament play a decisive role. One umpire’s strike zone is different from another’s, and sometimes an umpire’s strike zone will suddenly shift, as it did for the conservative majority in Bush v. Gore. In this regard, what is most disturbing about Roberts’s testimony was his indifference to the competing claims of big and little guys. He doesn’t seem even remotely bothered by the fact that in most circumstances the big guys have already won, and it is the little guys who look to the umpire hoping that his or her interpretation of the rules is guided by a fundamental commitment to fairness. That’s what equality before the law should mean. If not animated by a concern for justice, the law invariably will treat some people more advantageously than others, particularly those who can afford to hire advocates like John Roberts. The Court and the nation would be better served if Chief Justice Roberts had lost more sleep over the rules of that ball game.
September 27, 2005

Published in the 2005-10-07 issue: 
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