Tuesday, September 13, 2005

"Roberts Vows to Be a Humble Chief Justice"

He didn't say that exactly, but I don't want him to have humility anyway. That is, not in his (likely) future role as the judiciary's top advocate for the Constitution.

Roberts Vows to Be a Humble Chief Justice

Supreme Court nominee John Roberts pledged Monday to judge with humility and "without fear or favor" if approved as the nation's 17th chief justice and youngest in 200 years. "I have no agenda," he told the Senate Judiciary Committee at the opening of confirmation hearings.

"I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes," said the 50-year-old appeals court judge and former Reagan administration lawyer, picked by President Bush to succeed the late Chief Justice William Rehnquist.

He added, "Judges are like umpires. Umpires don't make the rules; they apply them." ...

"It is not undignified to ask the nominee questions he would rather not answer, should he prefer to remain inscrutable, or worse yet, all things to all people," said Sen. Russell Feingold, D-Wis. Several Democrats on the committee, mindful of the conservative positions Roberts took in legal memoranda written while working in the Reagan White House, said they intended to probe his views on issues such as abortion and civil rights.

"Don't take the bait," Sen. John Cornyn, R-Texas, advised Roberts. "Decline to answer any question you feel would compromise your ability to do your job," he added, saying that has been the practice of nominees appointed by presidents of both parties....

"The central issue before us in these hearings is whether the Supreme Court will preserve the gains of the past, and protect the rights that are indispensable to a modern, more competitive, more equal America," said Sen. Edward M. Kennedy, D-Mass., a liberal Northeasterner with more than four decades in office....

"If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability," he said.

Judges must have the "humility to recognize that they operate within a system of precedent ... the modesty to be open in the decisional process to the considered views of their colleagues on the bench," he added.
As expected, Kennedy demonstrated that his attitude toward nominations is purely agenda-driven. In a word, disgusting. Feingold is simply a hypocrite, ignoring that Ruth Bader Ginsburg established the practice of a judicial nominee declining to answer questions about something that he or she may encounter and rule on.

Roberts gave good answers, but I wish he had emphasized that "the rules" are known as the Constitution. I find his promised adherence to precedent very dangerous, because precedent can be wrong. Worst case, it could be legally correct (or "the law perverted" so the ruling appears correct) but morally wrong, like Kelo v. New London. At hearings held a century ago for Supreme Court nominees, did Ted Kennedy's ideological predecessor insist that the nominee follow the precedent of Plessy v. Ferguson? (Robert Byrd's probably did.) Moreover, rather than a judge making a new ruling to discover justice, dependence on precedent is the old trap of legal positivism. Friedrich Hayek assailed it in more than one work. And Sheldon Richman, in his introduction to The Law (Russell Translation), noted that Bastiat warned against the concept of law necessarily preceding rights and justice.

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