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.