The Roberts nomination

Proud Liberal beat me to this but it is something I’ve been pondering. My thought is not only is the nomination of John Roberts for Chief Justice a done deal, it probably should be. Here’s my reasoning, such as it is, in no particular order of importance.

First, it is apparent we are unlikely in my lifetime to see nominees with ideologies similar to mine or Proud Liberal’s. We are too far left of mainstream for anyone who spoke honestly about beliefs like ours to survive the politicization of the nomination process.

Second, as I mentioned shortly before last year’s election, the time to have a meaningful say in the future of the Court was on Election Day. Bush won. The Dems lost. Bush has the power and right to make his appointments, subject to the advice and consent of the Senate. Deal with it.

Third, there is a difference between having an ideology (i.e., political beliefs) and being an ideologue (i.e., a person who actively proselytizes that ideology in the political arena). If John Roberts did not have an ideology he should not be allowed on the Supreme Court. Why? Because it would mean he is intellectually brain dead.

The fact I may not agree with his ideology does not in and of itself alter or affect his qualifications to be a judge. I have yet to see anything to indicate that Roberts is an ideologue who will use the Court as a vehicle to promote his personal beliefs. Actually, when I hear of a man qualified enough to have argued 30+ cases before the US Supreme Court and who has his other legal qualifications, I find it hard to worry about he possesses the legal abilities to sit on the Court or serve as Chief Justice.

In fact, I told a prominent state GOPer who holds a mostly honorary position pushing the Roberts nomination that I was somewhat offended by the knee jerk reaction of the left to the Roberts nomination. The attacks were immediate, with seemingly little reflection on what I consider true judicial qualifications — temperament, background, training and experience.

People may not want to believe it, but I truly think the vast majority of us who practice law still retain that special view that first attracted us. The law is something that belongs above and beyond politics. With limited exceptions, personal beliefs should play no role in it. I do not ask my clients their position on the Iraq War or gun control (nor do I really care). It has nothing to do with the matters for which I represent them. Even if they fully support every single policy and pronouncement of George Bush, the potential that we might have disparate political views can not and do not impact my analysis of the law and how we approach or use it to address and resolve the issues that bring them to our firm.

Or look at it from a more directly analogous level. Assume (once you have stopped laughing) that I received a judicial nomination. That obligations of that position and the law trump any personal political views. For example, I personally would be inclined to support the decriminalization of marijuana. If as a judge, however, I were presented with a case involving a conviction under the statutes making its possession illegal, my personal views are irrelevant. And even if there were a constitutional challenge to such statutes, that challenge would be resolved by what legal research and analysis tell us, not my personal opinions.

Granted, an anti-abortion advocate should not be working for Planned Parenthood nor is a capital murder prosecution the place for a death penalty opponent. That said, the realistic problem is that some of the issues the Supreme Court address are politicized. The fact remains, though, that even those issues must ultimately be analyzed in a framework established and guided by legal principles. There is nothing to indicate that the personal beliefs or views of John Roberts will sway or stop him from doing so. What more do we want from a Court nominee?

No one can predict what impact putting John Roberts on the Court will have. The fact is, he holds what appears to be the necessary qualifications from a legal perspective. Let’s confirm him and hope the next Bush nominee does not fall into the ideologue category.

The Law is what it is–a majestic edifice, sheltering all of us, each stone of which rests on another.

John Galsworthy, Justice

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