America's Pastime and Future
by Fr. Roger J. Landry - September 23, 2005
Last week's Senate confirmation hearings for President Bush's nominee for Chief Justice of the Supreme Court were not really about John Roberts and his rather obvious professional qualifications to lead the nation's highest tribunal. The hearings were much more about the role of the judge and of the courts in our nation.
Judge Roberts clearly presented his understanding that the role of both is limited in his opening statement: "Judges are like umpires. Umpires don't make the rules; they apply them. … They make sure everybody plays by the rules." He stressed that "judges and justices are servants of the law, not the other way around" and that "a certain humility should characterize the judicial role." His job is "to call balls and strikes and not pitch or bat."
In earlier days, such words would have been unremarkable and uncontroversial. They became the major sound bite for the hearings' opening day because their modesty contrasts sharply with the practices of many modern judges and their supporters. Supreme Court justices, Roberts implied, are not meant to be philosopher-kings, sitting in an oligarchic super-Senate, using the pretext of a "living constitution" to pay lip service to the original document and invent new laws from the bench. They are not meant to be nobles who see themselves entrusted with the implementation of a social and cultural agenda that would never have a chance of getting through a legislature. They are meant to be umpires, not commissioners, whose task is not to have their favorite team win, but to allow everyone who plays by the rules to have a fair shot.
This larger context played itself out in two very notable ways in the hearings. The first was in regard to Judge Robert's thoughts on abortion and the Roe v. Wade decision that legalized it. In Roe, the Supreme Court said there was a secret constitutional right to abortion that neither those who wrote the document nor any of their predecessors on the court had noticed in the previous two centuries. They took the issue out of the hands of the democratic process and essentially tried to end all debate. If justices are umpires, then Roe was the time they ejected both sides from the game, while at the same time pronouncing one side the winner.
But since access to abortion has become the one absolute for most on the left, anyone who does not publicly agree with Roe or sustain the judicial activism that made it possible cannot be supported. Since Judge Roberts' position on Roe remains unclear, and since he clearly evinced a judicial restraint that opposes the activism undergirding Roe, several senators in favor of abortion have said that they do not think they can support him.
Pro-lifers may have been hoping for more from him in explicit criticism of Roe, but there's still reason to be hopeful. While on the one hand he said that he would respect Roe as he would any precedent, he also mentioned the criteria by which Supreme Court precedents can be overturned (as happened famously in Brown v. Board of Education, when the 1954 Court effectively reversed the precedent set earlier in Plessy v. Ferguson and other cases). Moreover, while Robert mentioned that he believes that the Constitution supports a "right to privacy," he interpreted that right not with respect to Roe but in terms of the clear constitutionally spelled-out rights against unlawful search and seizure and the unconsented to quartering of troops.
The second way the larger judicial context became relevant was when Senators Arlen Specter and Dianne Feinstein raised the question of what role Roberts' Catholicism would play in his decisions. No one asks an umpire whether he's a Catholic. But if one believes a judge is a philosopher-king, capable of legislating from the bench, and if one has an inherent bias against the teaching of the Catholic Church on abortion (as the Senators in question do), then queries flowing from religious bigotry are apparently fair game — even though Article VI, clause 3 of the Constitution prohibits a "religious test" for public office. Roberts dignified their office but not their question with a response, indicating that he would decide based on the law, without needing to install a secret hotline to Pope Benedict.
As the full Senate prepares to vote on his confirmation, most recognize that his hearings were merely an undercard to the heavyweight fight over President Bush's next nominee, slated to take Justice O'Connor's place and potentially shift the balance of the court.
Home plate is covered. It's time to look for another umpire.
Father Roger J. Landry is pastor of St. Anthony of Padua in New Bedford, MA and Executive Editor of The Anchor, the weekly newspaper of the Diocese of Fall River.
