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Three things to watch for during the Roberts hearing.


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As the nation continues to mourn the passing of Chief Justice Rehnquist, we have the opportunity to pay tribute to Rehnquist’s legacy of courageous public service by moving forward with the confirmation hearings for his former law clerk, Judge John Roberts. Today is the start of historic hearings on whether Judge Roberts should be confirmed to serve on the U.S. Supreme Court as chief justice. Although confirmation hearings may not necessarily make for the most exciting television, I think the American people can learn a great deal by tuning in.

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At the same time, confirmation hearings do not occur very often, and they have a style all their own. As such, it may be helpful to know what to watch for. For this reason, I’d like to share a few of the areas that I am going to be keeping a close eye on myself during the hearings.

Will my colleagues misuse the term “judicial activism”?

In the past, when someone used the term “judicial activism” it referred to judges who make up the law as they go along instead of applying the law as it was written by the people’s representatives. For example, the American people did not understand the Constitution to prohibit the execution of 17-year-old murderers because on the very day they ratified the Constitution, the laws in America permitted just that. Indeed, in 1989, the Supreme Court endorsed that understanding in a 5-4 decision. Yet, earlier this year, the Supreme Court reversed course, and held 5-4 that the Constitution prohibits this after all. Did the Constitution change? No. The only thing that changed was one justice now believes that, in his personal opinion, it is unjust to execute 17-year-old murderers, even though juries could impose this penalty only for the most hardened criminals who committed the most heinous crimes. That is judicial activism.

Some of my colleagues have misappropriated the term to mean something entirely different. For example, some use the term to describe judges who strike down acts of Congress. This definition is popular among those critical of the Supreme Court’s recent decisions striking down laws because they exceeded Congress’s power to regulate “commerce among the several states.” The problem is that striking down acts of Congress has nothing to do with judicial activism. Supreme Court justices take an oath to uphold the Constitution. It is their duty to strike down laws that violate the Constitution. To say that striking down a law is “judicial activism” is to call into doubt the entire enterprise of a Supreme Court.

Some also use the term to describe judges who overrule Supreme Court precedent. I actually saw a law professor use the term in this way not too long ago, and this definition is often invoked when some of my colleagues worry about whether Judge Roberts will vote to overrule Roe v. Wade or another of their favorite decisions. But if a prior precedent is a misreading of the Constitution, what is “activist” about correcting the mistake? Do my colleagues think that Brown v. Board of Education is an activist decision because it overruled Plessy v. Ferguson? I think not.

Will my colleagues ask Judge Roberts questions they know he cannot answer?

It may seem strange to ask someone a question you know he cannot answer, but, from every indication, that is precisely what many of my colleagues intend to do. Some have said they plan to ask Judge Roberts about any number of issues that are likely to come before the Supreme Court once he is confirmed. The problem is that, according to the American Bar Association’s Canons of Judicial Ethics, Judge Roberts is ethically forbidden from pledging to rule a certain way on any issue that is likely to come before him. Indeed, some have said they will not vote to confirm Judge Roberts unless he pledges not to overturn Roe v. Wade, even though that very issue is already pending on the Supreme Court’s November docket, an undisputed violation of the ethics rules.

The reason the ethics rules forbid judicial nominees from making such pledges is that it threatens the ability of nominees to remain impartial once they have assumed the bench. One of the hallmarks of the judicial function is that our judges must be impartial when litigants come before them and argue their cases. If Judge Roberts pledges to us under oath to rule a certain way and he keeps his promise when the case comes before him, the losing litigants will feel as though they did not receive fair consideration. If Judge Roberts does not keep his promise, he has lied under oath. It’s a no-win situation. For this reason, every member of the current Supreme Court declined to answer such questions. As Justice Ruth Bader Ginsburg has noted, it was “crucial to the health of the Federal Judiciary” to decline to do so.

But if my colleagues know Judge Roberts cannot answer these questions, why will they ask them? One reason would be to try to create the false impression that Judge Roberts is not being forthcoming with the American people. But, for the reasons noted by Justice Ginsburg herself, it would be unfair to Judge Roberts to suggest that he has not been forthcoming simply for following his ethical obligations.

Will my colleagues accuse Judge Roberts of being an extremist?

Two months ago, I read an article in the Washington Post reporting on the strategy that some of my colleagues might employ to resist whomever the president nominated. Prong three of that strategy was to accuse the president’s nominee of being an ideological extremist. This article has turned out to be quite prescient because it looks as though some of my colleagues are gearing up to do just that.

Not too long ago, in fact, one of my colleagues called Judge Roberts a “radical” because he supported the policies of President Ronald Reagan, for whom he worked. Now, President Reagan was many things, but radical is not one of them. He was reelected by nearly 60 percent of the American people, winning 49 of 50 states. It stretches the truth to the breaking point to suggest that any position of the Reagan administration endorsed by Judge Roberts is “radical.”

The liberal-special interest groups have been even more aggressive under this third prong of the strategy. Days ago, one group similarly labeled Judge Roberts “radical” for penning an opinion questioning whether Congress had exceeded its power to regulate “commerce among the several states” by regulating the habitat of a toad that never crossed state lines and that had never been used in commerce. Even a liberal law professor who often advises Senate Democrats has conceded that Judge Roberts’s view in this case was at least “reasonable.”

In my view, Judge Roberts is one of the best-qualified nominees for the Supreme Court in the history of that institution, and I think he should be confirmed. At the very least, however, I think we have a duty to the American people and to the memory of his former boss, the late Chief Justice Rehnquist, to conduct the confirmation hearings in a dignified and respectful way that shows due regard for the pursuit of truth rather than misrepresentation.

The Honorable John Cornyn (R.) is an United States senator from Texas and member of the Senate Judiciary Committee. He previously served as Texas attorney general and, for 13 years, as state-supreme-court justice and district judge.



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