Tuesday, September 06, 2005

A Federalist View of the Roberts Nomination

A Federalist View of the Roberts Nomination

As Supreme Court Justice Antonin Scalia has pointed out many times, federal judges are appointed, rather than elected, and have tenure for life, precisely so they can apply the law rather than follow the popular will.

Alexander Hamilton wrote in The Federalist Papers #78 that appointment of judges for lifetime tenure, subject only to good behavior, "is certainly one of the most valuable improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws."

In light of these fundamental foundations of the American republic, it is literally obscene for any interest group or lobbying organization to be running television commercials, or similar publicity campaigns, as to any nomination of any person to serve on the Supreme Court. It is pathetic for interested organizations to issue press releases one day, running over with praise for some memo where the nominee seems to have agreed on their pet issue. It is equally pointless for the same lobbyists to pompously announce that some equally obscure legal brief has motivated them to withdraw their endorsement. Who cares?

The endorsement or objection of anyone but the United States senate is constitutionally irrelevant, and of only the most remote secondary value practically. Mass mailings and self-promoting sound bytes are not a significant influence on the outcome. (Neither are articles like this one). Further, it will be a rare voter who decides whether to re-elect an incumbent senator based on who they did or did not vote to confirm for the United States Supreme Court. Voters have more pressing concerns, that can be more coherently expressed in casting their ballots.

A good rule for Supreme Court nominations would be: No person who has taken a public position that any precedent of the Supreme Court must be retained without change, or must be overturned, is qualified to sit on the court. If nominations and confirmations are all about how a justice will vote on this or that pet issue, then we as a people and a nation have already lost. The court by definition is no longer an independent arbiter and guardian of the supreme law of the land, but a pliant instrument blowing in the winds of political preference.

The president and the senators, no matter how much they may try to influence the atmosphere, mood and direction of the court, are appointing and confirming a justice who will henceforth be answerable to neither. Turning again to Hamilton, this independence is “peculiarly essential in a limited constitution.” Limitations on legislative authority “can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the tenor of the constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.” Every supreme court justice without exception has surprised or disappointed the president who appointed them, as surely as King Henry II regretted choosing Thomas a Becket as Archbishop of Canterbury. Have we forgotten that Earl Warren was appointed Chief Justice by President Dwight David Eisenhower, at the urging of Vice President Richard M. Nixon?

It is therefore futile to try to "sway" the court by judicial appointments. George Washington University's Jeffrey Rosen points out that the senate might do better to ask Roberts about the issues that will come before the court in 2015 than about the controversial cases of the past fifteen years. Fortunately, the prescience to frame or answer such questions does not exist in the human mind. But we can be reasonably sure that John Roberts's greatest impact will be on the resolution of future controversies, not atavistically rolling back well settled law.

Judge Roberts was clerk to 2nd circuit appeals court judge Henry Friendly. In his younger days, Friendly was clerk to Justice Louis Brandeis, and helped write Brandeis's opinion in Olmstead v. United States, which laid the foundation for our right to privacy rooted in the Fourth and Fifth Amendments. Friendly is known as a judicial conservative, who hesitated to rule for the outcome he personally favored, if the legal analysis necessary to get there would set a bad precedent for future decisions. Well, what does that tell us about Judge Roberts? About as much as all the rest of the rhetoric hanging like a cloud over the coming confirmation hearings.

If I were a United States senator, I would like to ask the nominee a question about the Olmstead case. I would ask

Judge Roberts, in Olmstead v. United States, Chief Justice Taft wrote a majority opinion that, since telephones and wiretaps were not known to, nor explicitly prohibited by, the framers of the Constitution, the 4th amendment could not define a wiretap from off an individual's private property as a search or seizure. Justice Brandeis, joined by three other justices, including Oliver Wendell Holmes, Jr., asserted that the Framers "conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." As we know, that asserted right later came to be adopted by a majority of the court in many succeeding cases. Without giving an opinion on the outcome of any past or future litigation, what is your analysis of that philosophical clash? Can the framework of a constitution expand to apply original principles to new developments that the authors could not have anticipated? If not, how durable an instrument can it really be?
There is another question I would like to ask, with apologies for the polluted political atmosphere that even raises it.
When the Supreme Court decided McCollum v. Board of Education, the only Roman Catholic sitting on the court, Justice Frank Murphy, joined the 8-1 majority in affirming that "The First Amendment has erected a wall between Church and State which must be kept high and impregnable." Archbishop Cushing of Boston responded "I am at a loss to understand how the Catholic member of the Supreme Court could go along with that opinion." I know that thousands of elected and appointed public officials, American citizens of the Roman Catholic faith, have served our nation with complete integrity, and without having to choose between their civic and spiritual allegiances. But at a time when bishops have taken it upon themselves to blackmail or bribe public officials, to coerce their conduct in office, by manipulation of the confessional, and threats to withhold Holy Communion, I find it unfortunately necessary to ask your thoughts on the implications of Archbishop Cushing's remark. Does a Catholic member of the Supreme Court have an obligation to follow the wishes of an ecclesiastical hierarchy? Does this take some precedence over his or her understanding of what the supreme law of the land mandates?
John Roberts's career offers no reason to ask that question, no cause to doubt the integrity of his conduct in office. But the times, and the irresponsibility of certain bishops, requires that the question be openly asked.

The strength of the court as an institution is our best hope. Roberts's recognition that a judge must be humble enough to listen to fellow judges speaks volumes. What the court does really is the product of nine minds deliberating, not an electoral contest. Perhaps the best measure of what kind of justice Roberts will be lies in his remarks to a group of law students last winter, reported in Time magazine September 5: "Deciding cases was a lot harder than I thought it would be. I kind of thought that in most cases that it would be pretty obvious... that this person should lose, this person should win, and you'd spend most of your time writing the opinions. I've found that I have to spend far more time than I thought I would just getting to that first step – what the right answer should be." One can ask for no better work ethic from a man or woman entrusted with expounding the supreme law of the land.

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