ON THE FINAL DAY OF the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over . . . the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom? . . . That's what I've been asking."
And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, 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. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitution and laws of the United States, and that's what I would do."
That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result. Roberts will go not with the little guy because he is the little guy, or the big guy because he is the big guy, but with the guy the Constitution says should win. He'll not look out for "particular interests" because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States.
As for just how Roberts will go about interpreting the law--and thus carrying out his oath--his testimony last week confirmed his earlier observation that he does not have "an overarching judicial philosophy." Roberts finds merit in textualist and originalist methodologies but does not hold to them exclusively. For example, he (unlike Justice Antonin Scalia) may sometimes find it necessary to consult legislative history in interpreting a statute of Congress. He also believes that certain broadly worded provisions in the Constitution--such as the due process clauses--effectively call on judges to declare their meaning. On the issue that sunk the Robert Bork nomination, Roberts holds that the Constitution encompasses "a right of privacy," even though it is not spelled out in the text. During the hearings, not incidentally, Roberts denied that the right of privacy was "a general right of privacy" and declined to say whether that right, first recognized in 1965 in the Griswold case, includes the abortion right constitutionalized eight years later in Roe v. Wade. Roberts's testimony also suggests he has a high regard for stare decisis and may well be reluctant to overrule a precedent he concludes was wrongly decided.
There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law--the rules, principles, customs, practices, and understandings that define it--and must not allow the law to be infused with the judge's own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging.
This helps explain why Roberts refused last week to state his personal views, notwithstanding that previous nominees for the High Court, having stipulated that they weren't talking about legal matters but their own views, have done precisely that. To preserve the integrity of the judicial process--to ensure to all, as he put it in his opening (and unscripted) statement, that "I have no [political] platform"--Roberts wanted to give no clue as to his own beliefs. "Just talk to me as a father," Joe Biden asked him, wanting to know how Roberts might think about end-of-life decisions and whether government should be involved in them. "Just tell me, just philosophically, what do you think?" Roberts answered, "I'm not going to consider issues like that in the context as a father or a husband or anything else." Only as a judge would he do so. Likewise with Dianne Feinstein, expressing her hope "to see your feelings as a man" (what else might he be?) on the same topic, Roberts declined.
Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."
The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance "progressive" visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary "in its established but limited place in American politics," wrote Arthur M. Schlesinger Jr. in 1947. But Hugo Black and William O. Douglas aimed to settle particular cases, Schlesinger said, "in accordance with their own social preconceptions"--such that, as a Yale law professor of that era said, "the less favored in life [would] be the more favored in law." By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin.
The good news is that the Democratic party is in the minority in the Senate and that party leaders know how politically unwise it would be to filibuster such a demonstrably well-qualified nominee. John Roberts will soon be chief justice of the United States.
-Terry Eastland, for the Editors