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Judge Undergoes Ordeal by Ideology

by James Hitchcock
September 18, 2005

As expected, John G. Roberts Jr., President Bush’s nominee to the Supreme Court, has been thoroughly grilled by the Senate and has emerged from the ordeal having revealed very little about his judicial philosophy, even in effect denying that he has one.

His comparing of himself to an umpire, while perhaps a clever strategy, is not apt. Lower-court judges often function like umpires, in that the principal task of lower courts is usually to determine facts. But at the higher judicial levels the task is to interpret laws, ultimately the Constitution itself, so that a Supreme Court justice is like an umpire called upon to enforce a rule book that only says things like, “Unsportsmanlike conduct is forbidden.”

Based on his overall record, Judge Robert is thought to be “conservative” on the two issues that most trouble many religious believers – abortion and the role of religion in public life - and he was put through the wringer (as almost all nominees for high office now are) mainly by Senators who fear that he is exactly that.

There is now much talk about people who allegedly want to establish a “theocracy” and to “impose their own beliefs on others,” warnings that have predictably been issued concerning Judge Roberts. But most of this fevered rhetoric is merely code language for abortion, on the part of people who are perhaps reluctant to make such a sordid thing the centerpiece of their agenda and who scramble for the high moral ground.

Judge Roberts has of course acknowledged that Roe v. Wade, the Supreme Court decision that made abortion legal, is “the law of the land,” but that admission does not necessarily mean that he thinks it could never be overturned, as many Supreme Court decisions have been. Thus many of the questions put to him turned on the issue of precedent – would he ”respect” previous court decisions?

The questions implied that every Court decision really is set in concrete and should never be questioned, but literally no one believes that, which shows how hypocritical many of his questioners are. Every aware person, no matter where they are on the political spectrum, can think of a lot of Supreme Court decisions they hope are reversed.

It is especially ironic that those who regard Roe v. Wade as a sacred text are liberals, meaning people who urge us to keep the country moving, constantly changing laws and other things to meet “new needs,” but who are now desperate to protect the status quo on abortion, adopting a stance towards judicial precedents that would have made it impossible to find racial segregation unconstitutional, for example, since earlier precedents had gone the opposite way.

Thus the process of confirming judges has become the ordeal it now is. We are reminded that in the past the Senate often rejected presidential nominees. But most of those rejections were of people deemed to be unqualified for the office, or who in some cases had made the wrong political enemies. Never before has raw ideology – the demand that nominees promise in advance not to go against certain precedents - been the criterion it now is.

Roe v. Wade, along with a series of church-state cases beginning in 1947, was itself a radical departure from what went before. Over the past sixty years the Court has made a revolution, and those who supported that revolution now want to insure that no one can undo its achievements. If in the late 1930’s certain nominees to the Court – Hugo Black, William O. Douglas, Felix Frankfurter – had been asked how they might rule on such questions as prayer in the public schools, and if they had answered candidly, they would not have been confirmed and the judicial revolution would probably never have occurred. The same would have happened if, during the 1950‘s and 1960’s, William Brennan, Harry Blackmun, and others had been asked about abortion. But in those days that was not the way it was done. Black, notably, was not seriously questioned about his attitude towards the Catholic Church, even though his membership in the Ku Klux Klan indicated that he was anti-Catholic, as his career on the Court confirmed that he indeed was.

The lead in grilling Judge Roberts has been taken by Senator Richard Durbin of Illinois, who is a Catholic but who makes it clear that he thinks the protection of abortion “rights” is a major concern. Like other Catholics in public office, Senator Durbin insists that he is “personally opposed” but believes that as a public official he must protect a constitutional right. But if his claim is taken at face value, Senator Durbin and others like him are being offered a wonderful opportunity to reconcile their beliefs with their public duties. If changes on the Supreme Court lead to a situation in which abortion is no longer thought to be guaranteed in the Constitution, then it will cease to be a right and no public official need be worried about letting his religion interfere with his duty.

But instead, Senator Durbin and some other Catholics now lead the charge against a nominee they fear might help to resolve their dilemma. Isn’t it about time that such people stop claiming even to be “personally opposed?”

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. Dr. Hitchcock's two volume work, The Supreme Court and Religion in American Life, Vol. 1 The Odyssey of the Religion Clauses and Vol. II From 'Higher Law' to 'Sectarian Scruples', was released by Princeton University Press September 2, 2004.

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