Yesterday, the Senate Judiciary Committee opened its hearing on the nomination of Judge John Roberts to be chief justice of the United States Supreme Court. Senators’ opening statements drew starkly different pictures of the role the judiciary should play in our system of government. Today, as senators begin questioning Judge Roberts, the questions we ask and the answers we expect parallel these starkly different views of what judges are supposed to do.
Yesterday, Democrats described a judiciary that will expand personal freedoms for all Americans and “defend our progress” on a host of fronts from civil, disability, and voting rights to privacy, the environment, and consumer protection. Most Americans, however, probably think that tackling this agenda is the job of the legislators they elect. Most Americans probably think that judges do something quite different, and much more modest. Judges, like umpires, apply rules to settle disputes or contests between two opposing sides. As my committee colleague Senator Charles Grassley put it in a hearing for a previous Supreme Court nominee, judges decide cases, not causes.
America’s Founders believed that the judicial and legislative branches must be kept separate, that judges and legislators do very different things. This principle obviously means that we must use different standards to select judges than we use to elect politicians. In contrast, former New York Governor Mario Cuomo recently said that someone’s personal opinions on issues are as relevant when he is a judicial nominee as when he is a political candidate.
I applaud President Bush for siding with America’s Founders, resisting this politicizing trend, and choosing judicial nominees, like Judge Roberts, who will not legislate from the bench. The proper understanding of what judges do, that judges interpret and apply but do not make the law, determines what information we need, the questions we ask, the standards we apply and, in the end, the votes we cast. Specifically, it means that three facts should guide the current hearing on Judge Roberts’s nomination.
First, what judges do limits what judicial nominees may discuss. The oath of judicial office and the Canons of Judicial Ethics require impartiality and prohibit making commitments regarding issues that may come before a court. Senators want to know many things about judicial nominees, but that desire to know is not the only consideration on the table. The separate imperative of judicial impartiality and independence means that nominees may not be able to answer two popular kinds of questions.
Many questions seek commitments or clues about how a nominee would rule on particular issues. Senators, and the law professors they consult, know many ways of artfully crafting such questions, but we all know those questions are designed to elicit political opinions from jurists who are ethically bound to be impartial. In 1993, Judge Ruth Bader Ginsburg, President Clinton’s Supreme Court nominee, explained why nominees cannot answer such questions, no matter how they are framed. She said: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
Other questions call for a nominee to opine or speculate about hypotheticals, outside of an actual case with concrete issues and real facts. Since 1792, as long as the judiciary itself has existed, the Supreme Court has held that judges do not have the authority to render such advisory opinions. Senators should not be surprised when nominees refuse to give what judges may not provide.
The second fact that should guide this hearing is that nominees themselves determine how to fulfill their obligation for impartiality and independence. Judges, not senators, take the oath of judicial office and are bound by the Canons of Judicial Ethics. Judge Roberts will be a federal judge for many years to come; this process will only determine which courtroom he will occupy. He must determine how best to honor his judicial obligations.
Justice Stephen Breyer drew that line in 1994 because, as he put it, clients and lawyers must understand that judges are really open-minded. Justice Anthony Kennedy drew that line in 1987 because, he said, the public expects that a judge will be confirmed because of his temperament and character, not his positions on the issues. Justice Ginsburg drew that line, refusing to answer nearly 60 questions and telling the Judiciary Committee her rule was “no hints, no forecasts, no previews.”
The third fact that should guide us is that the Senate traditionally has respected nominees’ judgments about where to draw the line. In 1967, Senator Ted Kennedy made this argument at a press conference supporting the Supreme Court nomination of Thurgood Marshall. He said: “We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are either before the Court or very likely to appear before the Court. This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.”
Justice Marshall drew his line, yet the Senate voted 69-11 to confirm him. Justice Sandra Day O’Connor drew the line, yet we voted 99-0 to confirm her. Justice Kennedy drew that line, yet we voted 97-0 to confirm him. Justice Breyer drew that line, yet we voted 87-9 to confirm him.
Responding to some of my questions at her 1993 hearing, Justice Ginsburg said: “I must draw the line at that point and hope you will respect what I have tried to tell you.” I hoped she would draw her line more loosely, but I did respect her decision. Along with 95 of my colleagues, I voted for her.
We must use a judicial, rather than a political, standard to evaluate Judge Roberts’s fitness for the Supreme Court. That standard must be based on the fundamental principle that judges interpret and apply but do not make law. Judge Roberts must decide how best to honor his own commitment to judicial impartiality and independence, deciding for himself when that obligation outweighs what senators, including me, might want to know.
I believe senators should honor his decision, and then make ours.
–The Honorable Orrin G. Hatch is a Republican senator to the United States Senate from Utah. Senator Hatch is a longtime member and former chairman of the Senate Judiciary Committee.