Plato and Judge Roberts I
Bill Long 9/15/05
Reflections on a Hearing
From the opening bell on Tuesday, September 13, when Chairman Arlen Specter, R-PA, began the questioning of Chief Justice nominee John Roberts, Mr. Roberts was deluged with questions regarding what he believed on certain issues. Was there a constitutional right to privacy? Did Congress have authority under the commerce clause to pass non-discrimination legislation? Would he overturn Roe v. Wade? Did he think that Lopez had cut back the Court's commerce clause jurisprudence too much? Was he in favor of strong antitrust laws? On and on came the questions. By the middle of day two it seemed that some of the Senators were growing weary of all the emphasis on where Roberts would come down on various questions and sought to get behind these issue to understand "Roberts the man." In Plato's terminology, as discussed in Book IV of the Republic, the Senators became interested in moving from an external to an internal view of justice. Who was the "real" John Roberts? Did he know what it felt like to face end of life issues? Two senators, DeWine (R-OH) and Feinstein (D-CA), either tried to probe or commend this internal view. After quoting from their words and commenting upon them, I would like to say a word about how Plato, one of the more sophisticated thinkers on the nature of justice, might look at the proceedings.
Senator Mike DeWine (R-OH)
After serving up some softballs to Judge Roberts, Senator DeWine closed his questions/comments with these words.
DEWINE: "Thank you. Judge, just one final comment: Yesterday, Senator Grassley asked you whether you think that there is, and I quote, 'any room in constitutional interpretation for the judge's own values or beliefs.' In response, you said, and I quote, 'No, I don't think there is....'"
"I know what you meant by that answer: Judges should not impose their own preferences from the bench. In fact, I said pretty much the same thing in my opening statement on Monday. But, Judge, putting on a black robe does not mean that judge should lose his character. You, sir, have a perfect resume and, certainly, an outstanding professional career. But a Supreme Court justice is more than just impeccable academic credentials and impressive accomplishments. President Bush nominated John Roberts, the man. America has gotten to know John Roberts, the man.... Throughout this time, your honesty, your integrity, your wisdom and, dare I say, your values have shown through. I would just say, sir, please don't check any of that at the door when you walk into the Supreme Court. By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man."
Reflecting Briefly On Senator DeWine's Words
MY COMMENT: Interestingly enough, DeWine then never asked who John Roberts the man was. Roberts had repeatedly said that when he donned the black robes of a judge his values, his personality, his individual commitments didn't matter. He was a complete servant of the law. But what no one probed was the difference between personal values and personal history and the way the latter shapes the former. Certainly it is a little naive, but still generally acceptable, to claim that your own prejudices or values don't enter in when you decide a case. You simply call cases like a baseball umpire would call balls and strikes. But it is disingenuous, or terribly naive, to fail to differentiate between personal values and and personal history and claim that since you are "neutral" on personal values, nothing except your professional past enters in when you are being questioned about a possible position on the Supreme Court. Actually, Senator DeWine was, perhaps unwittingly, aware of the distinction I just drew as he concluded.
Senator DeWine's Conclusion--September 13
DEWINE: "I think this country needs you to remember how you got here and who you met along the way. We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been. We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people. When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth. Those values are strong, they are true. The president saw them when he nominated you. And we are certainly seeing them this week. I must say, sir, they must never leave you."
"Justice Felix Frankfurter gave this same advise to his colleagues in 1949. 'There comes a point,' Justice Frankfurter wrote, 'where this court should not be ignorant as judges of what we know as men. Great justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robes, great justices never forget who they are.' I wish you well." "Thank you, sir."
Very fine words, indeed. But why just speak them as if they were part of a homiletical or hortatory excercise? Why not make these words the basis of one's examination of the candidate? Why not ask Judge Roberts about aspects of his personal history that shaped him? Emboldened him? Encouraged him? Scared him? Shamed him? Why not see the extent to which he is able to speak about what we (and Plato) might call "inner justice," the way that the soul was shaped either through education or experience to think and feel the way that it does?
Senator Dianne Feinstein (D-CA) was the next one to question Roberts, and she picked up on some of Senator DeWine's comments.