Justice for a justice

Roberts should be questioned based on qualifications, not beliefs

By: Adam Scharn

Posted: 7/28/05

In this new age of judicial activism, the retirement of Supreme Court Justice Sandra Day O'Connor brings the president an opportunity to reinstitute the doctrine of judicial restraint. Unfortunately, Democrats and those sympathetic to the left are more concerned with the political ideologies of the judges Bush has nominated than their qualifications to interpret the law. The result has been delayed hearings, filibusters and, in many cases, rejected nominees, due to political differences among the nominees and some members of the Senate.

However, the citizens of the United States cannot afford to wait for bipartisan bickering to end over this nomination. The seat to be filled is on the bench of the ultimate leveler of power, the ultimate protector of freedom. The Supreme Court begins its next session on Oct. 3. To fill the bench with its required nine members, partisan filibustering cannot come into play. It is the Senate's duty as the voice of the states to evaluate the qualifications of justice nominee John Roberts in a fair and timely manner. To do so, Roberts' political philosophy must not be considered as a dominant factor. Politics and jurisprudence are not interchangeable philosophies.

Sen. Ted Kennedy, D-Mass., was one of the first to speak out negatively about President Bush's nominee. Kennedy's main concern is "Whose side is he on?" More specifically, Kennedy wants to know whether Roberts is on the side of the environmentalists or the so-called polluters, the consumers or the corporations. Kennedy is concerned with how Roberts stands on issues such as abortion and affirmative action. More broadly put: Is he liberal or conservative?

The relevance of the answers to these questions only extends to judicial activism. Activism refers to a judge who rules on a case based on the politics of the statute in question. In other words, activism is the practice of judges and appellate justices manifesting laws Congress did not pass, and/or striking down laws that contradict a certain political philosophy, incorporating politics into judicial review.

Every question Kennedy intends to find an answer to concerns some aspect of political thought. Kennedy assumes that a conservative justice will discriminate against certain groups whose views on the political matters at hand differ from his own. This is not - and should not be - a criterion commonly found in a federal judge. The courts do not discriminate against any group or individual, on any level. Politicians have the luxury of favoring one group over another, based on which group will give them a better probability of winning. Federal judges and justices do not have this luxury. The sole reason members of the federal judicial branch are appointed, rather than elected by the public, is to keep politics completely separated from jurisprudence. This was the framers' intention. To continue this filibustering simply because of political differences between some members of the Senate and the president would not fall in line with this separation of philosophies.

Since the establishment of judicial review, the Supreme Court has held in numerous rulings that its role is not to decide whether laws are politically sound. Instead, the role of the courts is to determine whether the means used to create such laws are within the scope of Congress' constitutionally granted powers, and whether these laws infringe the civil rights and liberties of the public. The simple translation of this holding is that the judicial branch should stay out of the political arena. This is the Court's interpretation of the section of the Constitution regarding appointment of federal justices.

When the Senate conducts its hearings on Roberts, the only issues that should come into play are the justice's ability to interpret the law fairly and accurately. Asking questions of whether the nominee is more sympathetic to environmentalists or industrialists will not help the Senate determine whether Roberts is fully qualified to review the law. What must be reviewed is his record in the legal field. The questions to be asked should deal with his record as an appellate attorney and as a federal appellate justice. The Senate needs to be more concerned with Roberts' legal reasoning to argue/rule certain cases, rather than his personal political philosophy. Furthermore, this must be done without the typical delays common to so many of Bush's nominees over the last four years. Filibustering has gotten so bad because of partisan differences that some senators are requesting the removal of the rule that grants it. This is not the time to have a political feud in the Senate.