Judge Roberts Testimony
I’ve been able to listen to the vast majority of the Judge Roberts hearings these past two days. Likely, if you have no background in the law much of the content of the hearings is mired in legalese and case law that you much rather watch Barney with your kids. Well, not quite that boring.
I believe that the Democratic Senators chummed along (and Senator Specter) humming the abortion tune or rather “a woman’s right to choose.” Also, the Democratic Senators seem to feel, particularly Senators Schumer and Biden, that the Nation’s civil liberties lie in a radical interpretation of the 14th Amendment’s Due Process Clause rather than the text of the Constitution itself. The placement of the American citizen’s liberty in the Judiciary instead of the Constitution sheds light on what branch of government the Liberals place their political faith.
It is vitally important that Republicans ferret out more fully Judge Robert’s judicial philosophy. In the hearings today, some good things came out regarding Judge Roberts. In my view, Senators Kyl (R-AZ) and Senator Graham (R-SC) were the best questioners, especially Senator Graham.
Role of International Law
Senator Kyl asked Judge Roberts “What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions?” Judge Roberts responded as follows:
[A]s a general matter, . . . there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn’t about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.
If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent–because they’re finding precedent in foreign law–and use that to determine the meaning of the Constitution. And I think that’s a misuse of precedent, not a correct use of precedent.
Judge Roberts’s view on international law is comforting, particularly as the most recent, radical decisions from the Court have relied on international law as a basis for its decision (Lawrence v. Texas comes to mind). International law should play no role at all in the Supreme Court’s decision-making regarding what our Constitution means. As Judge Roberts articulated today, a justice’s reliance on international law allows him or her to cloak their own personal policy preferences as legitimate by citing tailored international law that fits their interpretative rationale. A Supreme Court Justice’s reliance on international law weakens our democracy and subverts our national sovereignty.
Strict Constructionist
Senator Graham’s questioning was particularly acute and probing. His approach to questioning is one which I would have liked to have seen more by the Republicans. Although the transcript is not yet available, I remember him asking Judge Roberts whether he was comfortable being described as a strict constructionist by President Bush. Judge Roberts said “Yes.” This is important, as Judge Roberts never has characterized himself, in speaking of judicial philosophy as a “strict constructionist.” According to Judge Roberts, his philosophy does not fit a particular label but is a “practical” jurist. It appears, thanks to Senator Graham, that Judge Roberts will adhere to the text of the Constitution rather than making up his own on a whim. That is good news.
What did trouble me in listening to Judge Roberts’s testimony was his opinion regarding substantive due process and the “right to privacy.” However, if Confirm Them is right, Roberts went one better that Thomas by discarding the penumbral approach of Justice Blackmun as judicial blather. Good for him.