Confirmation hearings for the nomination of Judge John G. Roberts as the next Chief Justice of the U.S. Supreme Court began Monday in Washington. At long last, the real battle of ideas now begins. This is an argument worth having, for it goes to the heart of our system of government and the proper role of the judiciary.
Judge Roberts’ opening statement before the Senate’s Committee on the Judiciary was an eloquent (and brief) manifesto for a humble judicial role. An exerpt:
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ballgame to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
More: Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes.
I have no agenda, but I do have a commitment. 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. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.
Contrast that view with the words of Sen. Edward Kennedy, who spoke to the press after the hearing and asked: “Is this nominee going to be an ally toward the continued march towards progress, or is he going to be someone whose view of the Constitution is so restricted, so stingy, so constricted that he will move us in a different direction? That’s what I think will be the issue in the coming hearings.”
Standing at the intersection of these comments by Judge Roberts and Sen. Kennedy, we encounter an honest difference of opinion — two rival views of the Constitution, the courts, and the rule of law. Sen. Kennedy sees the judiciary in general — and the U.S. Supreme Court in particular — as an engine for “the continued march toward progress.” In other words, as an institution committed to the expansion of rights according to modern interpretations of a “llving constitution.” He opposes any view of the Constitution that is limited by the actual words of the document and the intentions of its framers.
When Judge Roberts speaks of a humble role for the judiciary and describes the role of the judge as an umpire, he is defending a very different vision of the Court, of the Constitution, and of the nation. The battle is joined — and this one really matters.

From The Los Angeles Times: The California Legislature made history Tuesday as the Assembly passed a bill to legalize same-sex marriage. With no votes to spare, California’s lawmakers became the first in the United States to act without a court order to sanction gay marriages. The measure was approved after three Democratic lawmakers who abstained on a similar proposal that failed in June changed their minds under intense lobbying by bill author Assemblyman Mark Leno (D-San Francisco) and gay and civil rights activists.No Republicans voted in favor of the bill. Forty-one of the Assembly’s 47 Democrats voted yes; four Democrats voted “no,” and two abstained.
The law would change the legal definition of marriage from “a civil contract between a man and a woman” to “a civil contract between two persons.”
Governor Arnold Schwarzenegger is expcted to veto the bill, though he has not yet publicly pledged to do so.
Civilizations stand or fall on distinctions like the definition of marriage. This vote by the California Assembly, coming fast on the heels of a similar vote by the state’s Senate, tells us a great deal about where we stand as a nation.

Few observers were shocked when President George W. Bush nominated Judge John Roberts to succeed Chief Justice William H. Rehnquist on Monday. After all, Judge Roberts seems to represent all that President Bush expects of a jurist — a conservative judicial philosophy, personal integrity, and a mature public temperament. He will need all these and more as hearings for his confirmation begin in just a few days.
Both sides in America’s culture war understand that this nomination really matters. President Bush has been given the opportunity to shape the court for a generation or more.
Make no mistake — America’s legal and political culture is deeply divided between those who see the courts as engines for protecting and extending a social revolutiion and those who understand the courts to be the interpreters of the Constitution’s text and the protectors of the law’s majesty. Between these two legal worldviews lies a chasm of ideology, politics, social debates, and visions for the future. This nomination really matters.
CHIEF JUSTICE NOMINATION LINKS: Harvard Crimson, The Los Angeles Times, The New York Times [editorial, news analysis, news report], USA Today editorial, news analysis], The Washington Post, The Washington Times.

The death of Chief Justice William H. Rehnquist brings to a close one of the most tumultuous and historic eras in the history of the U.S. Supreme Court. Chief Justice Rehnquist died Saturday at the age of 80, after an almost year-long fight against thyroid cancer. His total term on the bench, including fourteen years as an associate justice, ranks him among the longest-serving jurists ever to serve on the nation’s highest court.

This eventful week became all the more historic with the announcement that U.S. Chief Justice William H. Rehnquist had died late on Saturday. The Chief Justice’s battle with thyroid cancer was well-known, and he died less than a year after his diasgnosis.
Nominated by President Richard M. Nixon to the nation’s high court in 1971, he was elevated to Chief Justice after he was nominated by President Ronald Reagan in 1986. He served more than 33 years on the court — a life’s contribution. Funeral details have not yet been announced. President George W. Bush is to speak of the Chief Justice’s death later on Sunday.
Immediate speculation centered on how the Chief Justice’s death will affect the confirmation hearings for John Roberts, scheduled to begin on Tuesday. Of course, the larger issue is the new opening on the court and in the Chief Justice’s seat.
Here is the official statement from the U.S. Supreme Court, delivered by spokeswoman Kathy Arberg:
William H. Rehnquist, the 16th Chief Justice of the United States, died this evening at his home in Arlington, Virginia surrounded by his three children. The Chief Justice battled thyroid cancer since being diagnosed last October and continued to perform his duties on the Court until a precipitous decline in his health in the last couple of days. He is survived by his three children: Janet Rehnquist of Arlington, Virginia, James C. Rehnquist of Sharon, Massachusetts and Nancy Spears of Middlebury, Vermont; his sister, Jean Laurin of Grand Rapids, Michigan; and nine grandchildren. His wife, Natalie Cornell Rehnquist, died in 1991.

The California Senate voted Thursday to allow homosexual marriages. As The Washington Post reports, this represents the first time a legislative body has approved same-sex marriage without a court ordering it to do so. The bill redefines marriage as a union between two people, rather than a union of a man and a woman.
The bill passed by a 21 to 15 vote. Gov. Arnold Schwarzenegger has not indicated whether he would support or oppose the bill.
Just five years ago, California voters overwhelmingly passed a referendum defining marriage as the union between persons of the opposite sex. The action of the California Senate represents an incredible act of arrogance against the voters of the state.
OTHER COVERAGE: San Francisco Chronicle, The Los Angeles Times, The Advocate, Baptist Press, The Dallas Morning News.

Rev. Michael G. Clark is a deeply committed man. I know this because The New York Times reports that he was at the sentencing hearing yesterday for Dennis L. Rader, the infamous B.T.K. killer in Wichita, Kansas. Rader, now one of the nation’s most notorious serial killers, was sentenced to ten life terms in prison for a brutal series of slayings that terrorized Wichita for years. He avoided the death penalty, but will not be eligible for parole for 175 years.

Christopher D. Morris is in a lather. In his op-ed article, “Stopping a Judicial Conflict of Interest,” published earlier this week in The Boston Globe, Morris comes right to the brink of secular panic — and then goes over the cliff.
He actually suggests that Christian leaders — both Roman Catholic and Evangelical — should be called before the Senate Judiciary Committee to say whether they would discipline a church member who, as a judge, voted to uphold Roe v. Wade. He suggests that a Catholic judge, for example, has “an automatic conflict of interest” when it comes to cases dealing with abortion. The same would hold true for an evangelical judge whose church would take action against him on the basis of his judicial decisions.
But he doesn’t stop with a call to summon Christian leaders before the Judiciary Committee. Look at this: Asking the bishops to testify would be healthy. If they rescinded the threats made against Kerry, then Roberts would feel free to make his decision without the appearance of a conflict of interest, and Catholic politicians who support Roe v. Wade would gain renewed confidence in their advocacy. If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent.
Did you get that? If the bishops repeated or confirmed their threats, the Senate Judiciary Committee should draft legislation calling for the automatic recusal of Catholic judges from cases citing Roe v. Wade as a precedent. I can honestly say that I never expected a major American newspaper to give space to such a blatantly unconstitutional argument. The Constitution prohibits any religious test for public office. Given this nation’s political history, one might think that a paper located in highly-Catholic Boston would keep this Constitutional principle rather firmly in mind.
Morris isn’t finished. Of course, such a new law should cover anyone whose religion makes it impossible for them to decide on their own whether abortion should be legal; therefore, testimony should be taken from the leaders of Protestant, Jewish, Muslim, and other faiths as well. It is clear that several mainline Protestant denominations separate the issue of abortion from church membership and personal salvation; judges from these faiths would face no conflict of interest.
Since liberal denominations take a liberal position on abortion, they get a pass, along with judicial nominees who may be their members. This kind of proposed legislation would be directed only at denominations and churches that are pro-life.
Mr. Morris demands an investigation. In any case, a Senate investigation of this subject is overdue not simply because of the threats made against [Senator John] Kerry. Christian activists have won a series of court victories that allow use of taxpayer money to help finance their schools, fund their charities, and place their religious symbols in public spaces. If US taxpayers are going to subsidize activities by tax-exempt Christian organizations, they have the right to be told what constraints their followers are under while they sit in judgment of Americans who may not share their religion. When constraints amount to sanctions, impartial decisions are impossible; judges then owe Americans the duty of disqualifying themselves.
Welcome to the age of liberal panic. When their cherished ideologies and prized court decisions are threatened, they resort to a frenzy of radical defense mechanisms. Proposing that Catholic judges be required to recuse themselves from all cases that could review Roe v. Wade is a form of legal and constitutional insanity. Why stop at abortion? What about same-sex marriage, euthanasia, and the entire universe of moral and legal issues that confront the courts?
This opinion piece, published courtesy of The Boston Globe, is a wake-up call for us all. “It’s time to have this dialogue,” Morris says. “That this proposal will no doubt be controversial should not be a reason for failing to pursue it.”
No, Mr. Morris. The reason this proposal must not be pursued is that it runs into direct conflict with at least two sections of the U.S. Constitution — the First Amendment guarantee of religious liberty and Article VI, Clause 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Any problem understanding those words?