The nomination of federal Judge John Roberts Jr. for the U.S. Supreme Court was politically shrewd. Given Roberts’ sterling credentials and reputed good temperament, those opposed to his nomination will have to argue that the public will not like his future judicial decisions — a challenging task, since Judge Roberts has been close-lipped on controversial issues, and since he may try to avoid comment in the Senate by citing general canons of judicial conduct.
But the canons governing Judge Roberts’ answers do not, in fact, prevent him from answering fully. And while many of his supporters cite past Senate hearings as examples of justices being confirmed without commenting on contentious cases, the model they endorse is bad for democracy and the cause of judicial restraint.
In general, a judge, a judicial candidate or a judicial nominee must comply with the code of judicial conduct for his particular jurisdiction. Judge Roberts, as a federal judge, must comply with the Code of Conduct for United States Judges. This code is less demanding than the codes for some jurisdictions: It simply prohibits a judge from engaging in partisan or other political activity. It does not prohibit him from commenting publicly on past court cases or on cases that might come before him.
Judge Roberts’ freedom to comment on specific issues is strengthened further by an illuminating — and now fascinating — 2002 U.S. Supreme Court decision. In Republican Party v. White, the Supreme Court reviewed a provision of Minnesota’s judicial code. At issue was the extent to which a candidate for judicial office could criticize past actions of the Minnesota Supreme Court.
In a 5-4 decision, the Supreme Court struck down the provision of the Minnesota code that said a judicial candidate could not "announce his or her views on disputed legal or political issues." While the court said nothing about whether a judicial nominee could comment on cases that might come before him, it did rule, in effect, that a nominee cannot constitutionally be prohibited from saying, "I disagree with the result or the reasoning in Case X."
This opinion will make it harder for Judge Roberts to head for the cover of judicial propriety when confronted with tough questions about, say, Roe v. Wade from the Senate Judiciary Committee. There is a certain irony in this. The champions of judicial activism on the committee — Sens. Charles Schumer, Edward Kennedy, Richard Durbin and Patrick Leahy — will be inclined to grill Judge Roberts, who is believed to be a judicial conservative, in an effort to expose him as an "extremist." In doing so, the Senate’s judicial activists will benefit from Supreme Court ruling that was upheld largely by the court’s conservatives over the dissent of the court’s activists. The activists — Justices Ginsburg, Breyer, Stevens and Souter — claimed that speech limits on judges should be upheld in order to preserve the appearance of judicial open-mindedness, with Justice Ginsburg writing, "Judges … are not political actors."
This last statement — another irony, coming from Justice Ginsburg — stumbles directly on the problem. The reason that Supreme Court confirmations are so contentious is that the justices have often failed to follow the model of a "nonpolitical" judiciary. The malleable "living constitution" model that the judicial activists embrace is a standing invitation to legislate from the bench.
In fairness, the judicial activists will reply that they are the last bastions for protecting "important freedoms." And in fact, the clash between the conservative and activist points of view is a fundamentally important debate.
The court’s decisions often involve our most contentious issues: abortion, race preferences, the 2000 presidential election. Since the justices cannot be voted out of office, the public can counteract an improper decision only through a constitutional amendment or (perhaps) new federal legislation. Both hurdles are very high.
Judge Roberts, then, should provide a detailed view of his judicial philosophy, and the Senate should exercise its constitutional "advice and consent" responsibility to ensure he does. The public should not have to guess his views based on his resume.
Democracy works best when it is transparent, and even nasty confirmation hearings are far less damaging to America than a Supreme Court that makes law, rather than interprets it. The court has tremendous influence over our lives, and a nominee should explain how he or she would make decisions once confirmed — whether Judge Roberts now, or a more activist justice later.
Patrick J. Wright, a former commissioner of the Michigan Supreme Court, is a senior legal analyst with the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.