WASHINGTON (BP)–Comparing judges to baseball umpires, Supreme Court chief justice nominee John Roberts told senators Monday that the judiciary has a “limited” role and must realize it doesn’t make the law.
“Judges and justices are servants of the law, not the other way around,” he told the Senate Judiciary Committee on the first day of confirmation hearings. “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical to make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”
While that certainly was music to conservatives’ ears, Roberts added: “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.” Liberal groups have expressed concern that Roberts would seek to overrule past Supreme Court decisions, including the infamous Roe v. Wade case that legalized abortion.
If confirmed by the Senate, Roberts would become the nation’s 17th chief justice, replacing the late William H. Rehnquist. All 18 senators on the Judiciary Committee — 10 Republicans and eight Democrats — made brief opening statements Monday, with Roberts capping the day with a short statement of his own. Senators were limited to 10 minutes each. The questioning of Roberts is set to begin Tuesday. The tentative schedule has the hearing concluding Thursday with outside witnesses.
“If I am confirmed,” Roberts said, “I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.”
The death of Rehnquist and the retirement of Sandra Day O’Connor has given President Bush a unique opportunity to shift the court to the right. While Rehnquist was a conservative, O’Connor was a moderate on social issues and favored abortion rights. Although Roberts originally was nominated to replace O’Connor, Rehnquist’s death changed that, prompting Bush instead to nominate Roberts to take Rehnquist’s place. Bush now must name another successor to O’Connor, who has said she will serve until a nominee is confirmed.
Members of both parties expect Roberts — currently a judge on the U.S. Court of Appeals for the D.C. Circuit — to be confirmed.
Christian conservative groups thus far have supported Roberts’ nomination, believing his judicial philosophy is similar to the court’s other conservative members.
Committee Chairman Arlen Specter, R.-Pa., noted that Roberts, at age 50, could end up serving on the court until 2040 “or longer.”
Democrats urged Roberts to answer questions about specific cases from the past, most likely including Roe v. Wade.
“Judge Roberts, if you want my vote, you need to meet two criteria,” Sen. Chuck Schumer, D.-N.Y., said. “First, you need to answer questions fully so we can ascertain your judicial philosophy. And second, once we have ascertained your philosophy, it must be clear it is in the broad mainstream.”
But Sen. John Cornyn, R.-Texas, countered by telling Roberts, “You have no obligation to tell us how you will rule on any issue that might come before you if you’re confirmed to the Supreme Court…. If you pledge today to rule a certain way on an issue, how can parties to future cases possibly feel that they will ever have a fair day in court?”
Including Schumer, several Democrats on the committee expressed concern about Roberts.
“Unfortunately, Mr. Chairman, there are real and serious reasons to be deeply concerned about Judge Roberts’ records,” Sen. Edward Kennedy, D.-Mass., said. “Many of his past statements and writings raise questions about his commitment to equal opportunity and to the bipartisan remedies we’ve adopted in the past.”
Sen. Joseph Biden, D.-Del., referred to an ongoing legal debate in America over “whether the Constitution is going to continue to expand the protections of the right to privacy [and] continue to empower the federal government to protect the powerless.”
“Quite frankly, judge, we need to know on which side of that divide you stand,” Biden told Roberts. “… Judge, if I only look at what you have said and written … in the past, I would have to vote no.”
Republicans defended Roberts, saying Democrats were seeking to change the results of the 2004 election.
“The president won,” Sen. Lindsey Graham, R.-S.C., said. “The president told us what he was going to do and he did it. He picked a strict constructionist to be on the Supreme Court. [If] anybody’s surprised, they weren’t listening to the last campaign.”
Graham noted that Clinton nominee Ruth Bader Ginsburg was confirmed by the Senate to the court even though she was on record as supporting Roe v. Wade.
“If we were to base our votes on that one principle, Justice Ginsburg would not be Justice Ginsburg,” Graham said.
Sen. Jeff Sessions, R.-Ala., charged that Democrats wanted an “activist” court.
“[A]ctivist rulings strike at the heart of democracy,” he said. “Five members of the court may effectively become a continuing constitutional convention on important questions, such as the taking of private property, the definition of marriage, the Pledge of Allegiance [and] a moment of silence before a school day.”
Sen. Orrin Hatch, R.-Utah, argued that the Founding Fathers believed separate branches of government — with the legislature making the law and the judiciary interpreting it — was the “lynchpin of limited government and liberty.”
“Well, times have changed,” Hatch said. “Today, some see the separation of powers not as the condition for liberty but as an obstacle to their own political agenda. When they lose in the legislature, they want the judiciary to give them another bite at the political apple. Politicizing the judiciary leads to politicizing judicial selection.”
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