Larry DeWitt

Mr. Smith Goes to the Supreme Court

by Larry DeWitt
September 16, 2005

Well, the John Roberts confirmation hearing is, for all political purposes, over and done. Roberts will be our next Supreme Court Chief Justice. The Democrats are confounded; the Republicans are uneasy in their victory; and the Republic just may be the real winner.

The Democrats are confounded because they were on the look-out for a conservative judicial activist whom they could at least wound if not stop. The Republicans are uneasy because they expected they had gotten themselves a conservative judicial activist whom the Democrats might wound, but whom they could not stop. Both were up-ended in their political ambitions by the simple spectacle of a jurist who believes it is not the job of a judge to be a partisan for political causes. Roberts' view--expressed repeatedly and persuasively--is that the job of the judge is simply to apply, accurately and objectively, the law to the cases that come before the courts. Oh, of course, both political parties protest that this is what they want in a judge; but that is a vast lie, a pretense for PR purposes. What both camps of politicians want is a politician in a robe, but one who thinks like them, who shares their politics. And the party with the most votes damn well expects to get what they want. And the party with the lesser votes damn well expects to have the usual political pleasure of filling the nominee with darts and arrows before his escape. Roberts frustrated both parties by simply aspiring to be a judge. Wonders never cease.

The Democrats: Petulant and Perplexed

There was a lot to like about Roberts. He was obviously the smartest guy in the room. It was a tour-de-force to see him discourse, not just in a learned way, but in an understandable way, on dozens of court cases--without a single note or without any aide covertly whispering in his ear. No member of the Senate--and no Supreme Court nominee in recent history--could match him. There is hardly a member of the U.S. Senate who could manage a similar performance on even a contemporary bill they were introducing. To see Diane Feinstein reading her own prepared remarks--oblivious to the context of the moment and the demands of thinking on her feet--was to appreciate just how embarrassingly dull-witted the Senators grilling Roberts really were, and just much he towers intellectually above them all.

Roberts was likeable in a classic Mr. Everyman way (see my prior column on this point), and he was measured, articulate, reassuring, and . . . well, judicial in his demeanor. The poor pitiful Senators never had a chance.

Not having the good graces to simply shut up and vote YES, the Democrats had to make some sort of display of earning their pay, so they mostly made fools of themselves. Senator Kennedy seemed especially thugish and irrelevant, and on the verge of becoming an embarrassment to his party, in somewhat the same way that Senator Byrd has long been an embarrassment to the Democrats. Byrd is like a crazy uncle in the attic who we do not mention in polite company, and Kennedy seems to be steadily climbing the attic stairs. Kennedy spent most of his time and energy trying to mind-wrestle with Roberts (the mis-match being a pitiful thing to behold) over the meaning of snatched words and phrases from memos Roberts had written decades ago. The behavior--on Kennedy's part--was reminiscent of nothing so much as Bill Clinton's mock puzzlement over what the meaning of "is" is.

Joe Biden, by contrast, played his usual role, which is that of the kid in the class who is smarter than most everyone else in the room, and who is determined to make sure we all know it. He was by turns hyperbolic and petulant in his insistence that Roberts stop talking so that Biden could talk some more. Roberts, by contrast, was cool, moderate, and likeable. Roberts appeared like no one so much as Jimmy Stewart in "Mr. Smith Goes to Washington"--with his earnestness more than a match for Biden's smugness.

Charles Schumer--who is the kid in the Democrat's class who is smarter than Biden--was earnest and articulate, but rather in the manner of someone who is angry that after having put the jig-saw puzzle together he cannot quite make out what the picture is. Thus he was reduced to imploring Roberts to somehow communicate to him what his "core values" were--what was in his heart--so Schumer could decide if Roberts holds the same values as he does. Schumer too could not grasp that as a jurist Roberts' values are irrelevant to his decisionmaking. And Schumer, no matter how smart he is, completely failed to understand that the test for a judge is not whether he shares your politics, but whether he has any politics at all. Any politics in a judge is bad for the nation, even if his politics agree with ours--even if our hearts beat as one.

Dianne Feinstein was about as plodding and inarticulate as one could get, without spontaneous laughter breaking out in the room.

Other Democrats, like Dick Durbin, simply could not fathom what was before them. These Senators--whose every word, gesture and pose is a political statement--had no paradigm for what they were seeing. They could understand liberals, and they could understand conservatives, but they simply could not fathom the idea that someone could escape either pigeonhole by willful transcendence of the realm of politics.

Several of the Democratic Senators virtually whined that they were being forced to make a decision in conditions of uncertainty--that they could not be sure what kind of judge Roberts would turn out to be. Biden complained that voting without knowing for sure how things will turn out was like "rolling the dice." Not to be outdone, Schumer trumped with the metaphor that is was more like "betting the house." What they were really craving of course was for the nominee to send them a set of sub-rosa signals that reassured them that he shared their politics. But one cannot ask about politics so bluntly in these situations, so they asked about his "values," which is the polite political proxy for the same thing. But of course if they could know in advance how their vote would pan out, this would make the vote, to pursue the metaphor, more like betting on a sure thing. Which is often how things are done in the Senate, no doubt. Among the many conceits displayed by this complaint was a real failure to appreciate John Rawls' veil of ignorance as an indispensible aid to producing a just society. In other words, if the Senators were in the position of knowing in advance whether or not Roberts would serve their political agendas, this would be ipso facto evidence of a despoiled democracy.

To resurrect whatever credibility and honor they may have left, my sincere advice to the Democrats is that they had better vote unanimously in favor of confirming Roberts. When President Bush designates his next nominee (who is likely to be a conservative activist because there are so few objective jurists around in our postmodern age, and they probably picked this one by accident) the Democrats can then attack with glee. It probably will do no good, as the Republicans will, with even more glee, push through whatever agenda-pusher they can find to don a black robe. What the Democrats would do if they were really smart (okay, just for the sake of argument, assume this were possible) would be to trumpet Roberts as the very model of an ideal Supreme Court nominee, and then insist that all future nominees meet this standard. Then President Bush would truly be hoist on his own petard. And the Democrats could then get their full share of glee.

The Republicans: Oblivious

Republicans are usually hypocrites-with-malice, as when Next Gingrich and Henry Hyde pursued Bill Clinton for his martial infidelities with young female staffers, after having serially committed the same offense themselves. But in these hearings, the Republicans were hypocrites-without-a-clue. Expecting that President Bush had given them the red-meat they hungered for--a conservative judicial activist--they persisted in support of their nominee despite his quite evident testimony that he is no such thing.

The Republicans are no different than the Democrats in believing that everything and everyone is political, and that all clashes are clashes of "us" vs. "them." Roberts, being one of "us" (i.e., a Republican) they assumed the obligation to advocate his case and to rebuff all darts and arrows flung in his direction. So they spent most of their efforts counter-attacking the Democrats' feeble thrusts with their own self-serving parries.

The Democrats--apart from trying to peer into Roberts' soul to see if he shared their "values"--made three feeble arguments: Roberts did not answer all their questions; the Administration withheld some documents from Roberts' tenure as Deputy Solicitor General; and Roberts' written record revealed troubling sentences.

Never mind that most of the time the Senators did not want Roberts to answer anything, as this might detract from the time available to them to make their own speeches-disguised-as-questions. Nevertheless, the Republicans rejoined that prior nominees also refused to answer questions--leading to the absurd theater of the two parties each claiming to defend and define the "Ginzburg precedent," by which that Justice had herself refused to answer some subset of the universe of question-like objects that spilled from the mouths of the Senators. And of course, what the Dems were really asking Roberts to do was to say something controversial so they could pounce on it. That he proved way-too-smart to play that game annoyed them no end. As to withheld documents: the Republicans appealed to the god-like principle of "attorney-client" privilege, which in a roomful of lawyers is like uttering the phrase "in God we trust." Thus the Democrats--themselves mostly a band of lawyers--had no effective rejoinder. As to snatches of quotations from old documents touched by Roberts, the Republicans contented themselves with adding more sentences to the selective quotes brandished by the Democrats, to make them marginally less selective. In other words, both parties tried to selectively cite Roberts' past works to "spin" these works to their position. The spinning was a draw. At the end of all their heaving and sighing efforts, the Republicans' main position was: whatever the Democrats say, "we're agin it." Roberts was the class-act of the whole circus. The Senators all looked like the circus-clowns by comparison.

As unenlightening as all this was, there was some low-comedy entertainment coming from the Republicans. John Cornyn of Texas skipped large parts of the hearing so he could prowl the halls outside the hearing room passing out laminated cards labeled "Crying Wolf Bingo" and splashed with fright-words like "Ideologue!," "Zealot," Partisan," "Far Right!," "Extremist!." The purpose of this Dadaistic performance was, as the accompanying press release explained, to show how Democrats had characterized prior Republican nominees to the courts. Actually, another possibility is that Cornyn aspires to join Senator Kennedy in the attic.

But mostly the Republicans were oblivious. Roberts' commitment to the judicial philosophy of the a-political jurist whose devotion is to the Rule of Law--even though he repeated it a thousand times in a hundred ways--was spoken in a foreign language as far as the Republicans was concerned, just as it was to the Democrats. If the Republicans had really grasped what Roberts was saying to them, they would have instantly called for a vote on his nomination, voted unanimously against it, and used their majority power to block their own nominee. Then they could have the President nominate someone who was the right kind of politician to wear the robes of a Supreme Court justice. Someone like Clarence Thomas or Antonin Scalia, who are just the kind of politicians in judicial drag that the Republicans lust for in their hearts and souls.

The Republic: Well-Served

For the benefit of the Senators, who are apparently a little shaky on their grasp of the principles of American government, we might review Roberts' judicial philosophy, and take note of why it is so precious (and so rare).

John Roberts confounded both the liberals and conservatives alike by insisting that his personal views on the various "hot-button" issues of the day are utterly irrelevant to the role of a judge. In Roberts' view, the judge is a neutral arbiter of the objective meaning of legislative statutes and Constitutional provisions. His role is simply to say what the law says, and not to partner with legislatures in working to produce social progress. Activist judges--those who are, in the parlance, "results-oriented"--are anathema to an objective judge, such as Roberts represented himself to be. (Of course, there is always the problem of the slips twixt testimony and ruling, but Roberts at least was articulating the ideal to which all judges are obligated to aspire.)

The Democrats, in this case, since it was a Republican nominee they were seeking to skewer, were confounded again and again by Roberts' refusal to share his personal views, preferences, politics, values, etc. with the Committee. Senator Durbin wanted to know whether he would stand up for the "little guy" against the big interests (which is presumably a core Democratic political value). His answer: "If the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution,"stunned Durbin, who could not understand how one could be so neutral on a such a basic tenet of political values. After all, what makes a politician the kind of politician he is hinges on what his basic political values are, and the Democrats wanted to ascertain if Roberts shared their "values." Roberts replied by patiently explaining to the pols that he was not asking to join the club of pols, and that his devotion was to the Rule of Law and the impartial application of the law to the cases that come before courts. The Senators literally could not understand this, since they see everything as political. The ideal of the neutral and objective judge eludes them.

Pols want judges to be pols like them, and not to be pols like those on the other side of the aisle. But they cannot out-and-out ask a nominee: "Do you solemnly swear to uphold the agenda of the (Republican, Democratic) Party in all your decisions and actions, and help us advance our political agenda?" So as a proxy for this forbidden question they seek to discern the nominees political "values," on the quite sensible assumption that if the nominee's politics are like their own that as a judge he/she will surely apply this politics to their decisions. But when a judge applies his/her own values, their own sense of justice, rather than simply objectively applying the law to the case before them, they become Philosopher-Kings, arrogating to themselves the power to personally define the just society. And while Plato may have fancied his very flawed notion of a Republic to have a sanguine place for philosopher-kings, representative democracies have no use for such a role.

It is not the job of a judge to produce justice, except in the very narrow sense of a just application of the law to the particular case. It is the job of the laws to produce justice. When laws themselves are unjust, then they must be changed through the processes of representative governance, or by observing that they are violative of an existing Constitutional principle. Unjust laws cannot be changed through the fiat-acts of an unaccountable judge. To do so would be a form of tyranny--even if one agrees with the judge's sense of justice, that is, even if the judge comes up with the right answer. This is one of the most basic insights of the founding principles of the American nation, with its separation-of-powers doctrine and the privileged role in the body politic played by the judicial branch. The foundational assumption of the separation-of-powers doctrine is that judges can in fact serve as objective, impartial appliers of the law. The idea that a judge ought to intervene to produce what he/she takes to be more just policy outcomes than the legislative bodies have produced, is form of arrogance that threatens the very foundations of our political system. And this is equally true whether the judge is striving to bring about a more "traditional" conservative society or a more "progressive" liberal one.

The only Senator, from either party, who seemed to grasp Roberts' essential philosophy of jurisprudence was Lindsey Graham (R-SC) who complained about the Democrats' incessantly trying to discern what was in Roberts' secret heart-of-hearts. "There are bleeding hearts and there are hard hearts," Lindsey observed. "And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is 'Adopt my value system,' we're doing a great disservice to the judiciary." Let us hope that Senator Graham will retain this insight if a future Democratic President should someday nominate someone like Roberts to the bench. Let us hope Senator Graham will not feel the need to peer into the suspect heart of a Democratic nominee because he cannot be assumed to share the Senator's own "values."

It is also, by the way, incredibly stupid and short-sighted to want our Supreme Court Justices to apply their politics to their decisions. Imagine, for the sake of argument, that you are a liberal and that a proper liberal judge uses his/her rulings to shape public policies in a liberal way. What happens--if we accept this as a legitimate role for a judge--when the political winds shift, as political winds always do, and we witness the appointment of a raft full of conservative illiberal judges? They will then do precisely the same thing as their liberal predecessors: use the power of their legal rulings to produce the outcomes they think more socially desirable. Then judges will have become simply politicians with robes and all credibility of their work--and all claim it has to legitimacy and to our respect--will have been destroyed.

The idea that a judge can rise above his/her personal traits, interests, opinions, politics, etc., and simply say objectively what the law says, is something that almost everyone in this cynical postmodern age of ours either explicitly or implicitly rejects. That the best judges can and do obtain this level of objectivity in the real world of contested law, ought to give aid and encouragement to our belief in representative democracy. And when we find, against all our expectations, a jurist who adheres to this view of the judge as apolitical servant of the Rule of Law, we ought to celebrate our good fortune.

But in our postmodern age, some of us do not really want judges with Roberts' refreshingly traditional view of jurisprudence. Liberals generally want liberal activists for judges and conservatives generally want conservative activists for judges. Roberts' philosophy was almost certain to please no one. The liberals were chagrined by Roberts' professions of objectivity, because they were on the hunt for conservative activists whom them might oppose. The Republicans--since he was a Republican nominee--had to swallow any hint of awareness and pretend that this objectivity was what they too were interested in. The sad truth is that too many in our postmodern mood expect judges to be politicians, and for them, the only question becomes "whose side are you on."

If Roberts is testifying truthfully about his philosophy and his intentions, and if we presume a modicum of self-insight on his part, then he seems to the perfect judge. We should not want liberal activists in our courts--even if we are liberals--for the simple reason that when conservatives are in the ascendancy then we will get conservative activists on our courts. Better to adhere to the strict ideal of the disinterested objective arbiter of facts and law. Roberts--if what he says is true--will clearly be, in my view, the best Justice on the Court, and one of the best in recent history. But, of course, the slip twixt testimony and ruling is always a possible rub. But after watching the hearings, it seems that Roberts is the best we could possibly dream of in a Supreme Court Justice. He is thoughtful, smart, and knowledgeable, and has a sensible philosophy of the role of the judge. He is much better than the activist judges on either side. I am inclined to say that if this is what President Bush has in mind for his nominees to the court, then the other eight Justices ought to retire immediately and let the President appoint the whole court!

What's Next?

The Roberts nomination will come to be viewed, I fear, as an enormous mistake for all concerned. Both the Republicans and the Democrats will rue the day the President picked Roberts, and rue the accursed twist of fate that sent the Reaper for Rehnquist at just the wrong moment so that Roberts was promoted even before being selected for the job. The Republicans will return to form and be sure to seek out a conservative judicial activist in the mold of Thomas and Scalia. The Democrats will return to their impotent form as well, slinging darts and arrows and accomplishing nothing but the tarnishing of the political process and their own public images. All will return to the status quo, and all will be right with our world again. This one brief mistaken moment that somehow managed to sneak through all our political screening processes and do something reflecting the actual principles upon which the nation was founded, will soon be the stuff of history, not to recur again in our lifetimes. The Republic has briefly been served, and everyone involved will make sure that never happens again.