Monday, September 12, 2005
Judge Roberts, congratulations on your nomination to be our nation's 17th Chief Justice.
You are one of our nation's premier lawyers who has won the respect of colleagues, adversaries and judges for your integrity, professionalism and legal skill. But, as you have already seen, our confirmation process is not a pretty sight. Time and again, you will have your legal positions, your pre_decisional memoranda, even as a young lawyer, distorted and taken out of context. These attacks are driven by outside leftist groups. They will dig through the many complex cases you have dealt with in an effort to attack your record. They will produce, on cue, the most dire warnings that civil liberties in America will be lost if the Senate confirms you as a federal judge. It is really a form letter. All they have to do is place your name in the blank space. These tactics are unfair, and sometimes dishonest, as we saw with the forced withdrawal by the National Abortion Rights Action League of its false and contemptible advertisement.
My advice to you is this: keep your famous good humor, take your time, and explain the procedural posture of the cases and exactly how you ruled as a judge or the position you took as a lawyer. Americans know these matters are often complex and will appreciate your answers.
The American commitment to the rule of law is one of our most exceptional characteristics as a people. It is the foundation of our liberties and our productive economic system. This tradition is a product of centuries of development.
In his magnificent speech in March of 1775 in the House of Commons, urging King George not to go to war against the colonies, Edmund Burke described America's commitment to the rule of law by saying: "In no country perhaps in the world is the law so general a study." "I hear that they have sold nearly as many of Blackstone's Commentaries (on the law) in America as in England."
But activism by a growing number of judges threatens confidence in the judiciary. Activism is when a judge allows his personal views on a policy issue to infect legal judgments. Activist rulings cease to be based on statutes or the Constitution, but reflect whatever a judge may think is decent or wise public policy. This should not be, but even some members of this body have encouraged it. Indeed, Judge Roberts, a senator in recent weeks demanded to know whose "side" you are on before he voted. His statement, while shocking, provides a direct glance into the philosophy of activism. When we have an "activist" judiciary, the personal views of a judge become everything. Who the judge is and whose side he is on, not the law and the facts, will determine the outcome of the case.
Since federal judges hold their offices for as long as they live, and are unaccountable to the citizenry, activist rulings strike at the heart of our democracy.
Five members of the court may effectively become a continuing constitutional convention on important questions such as the taking of private property, the definition of marriage, the pledge of allegiance or even prayer at football games. If a Congress acts wrongly, new members may be elected and the result change by a simple majority. A Supreme Court decision founded on the Constitution can be changed only by constitutional amendment which requires a vote of two-thirds of both houses of Congress, plus a vote of three-fourths of the state legislatures.
This results-driven philosophy does not respect the law. Indeed, it destroys the law. It is a post_modern philosophy that elevates outcomes over the law. Many believe the law does not have an inherent moral power, and that words do not have, and cannot have, fixed meanings. Judges are thus encouraged to liberally interpret words to reach a result the judge believes is correct. Activist Supreme Court judges do this by saying they are interpreting the words of the Constitution in light of "evolving standards of decency". This phrase has actually formed the legal basis for a number of recent decisions. But as a legal test, it utterly fails because the words can mean whatever the judge wants them to mean. It is not objective, cannot be consistently followed, and is thus by definition not law, but license. Such vague standards provide the court a license to legislate – a power the Constitution did not provide to judges. Indeed, recently this license has led some judges to conclude that they may look beyond American law or American standards of decency to the standards of foreign nations in an attempt to justify their decision. The arrogant nature of this concept is revealed by a Supreme Court ruling in 2003. There, a majority of the U. S. Supreme Court explicitly declared that the Constitution prohibits the elected representatives of the people from relying on established morality as a basis for the laws they pass. The court thus declares itself free to amend the Constitution by redefining its words to impose whatever it decides is "evolving standards of decency." Yet at the same time, the Supreme Court prohibits legislatures from enacting laws based on objective standards of morality.
While these unprincipled decisions are becoming too frequent, I do not want to suggest that such is the common practice because it is not. Having practiced full time in federal court for more than 14 years, I witnessed this first hand. Day after day: if the law and facts were on my side, I would win consistently; if they were not, I would lose. This was true regardless of whether the judge was a Democrat, a Republican, a liberal or a conservative.
Certainly, our founders were so adamant that judges be unbiased and fair that they drafted a Constitution that gave them a lifetime appointment and provided that Congress could not even reduce their pay. Our founders believed this independence would enhance objectivity and justice.
My fear today is that many have come to believe that to expect objectivity in judges is hopelessly naive. Liberals and conservatives openly make this point. Our able colleague, Senator Schumer, when he chaired the Courts Subcommittee, held hearings contending that all judges have ideologies, that we should admit that their political views affect their decisions, and we should openly inquire about these personal beliefs. A writer in the conservative National Review complained that Republicans are hurting the conservative cause by insisting on "abiding by those outdated norms." In effect, he suggests conservatives should get their guys in there to promote conservative ideas.
While many advocates on the left and right would like a court that promotes their agenda, I do not want that and neither do the American people. What we must have, what our legal system demands, is a fair and unbiased umpire who calls the game according to the existing rules, and does so competently and honestly every day. This is the American ideal of law.
Ideals are important because they form the goals to which we all strive. We must never abandon our ideal of unbiased judges, judges who rule fairly, without regard to politics. Two important, bipartisan commissions, The Miller Center of Public Affairs at the University of Virginia and Citizens for Independent Courts, have issued reports that deplore any policies that would tend to politicize the courts. These hearings provide the nation an excellent opportunity to discuss these important concepts.
Our nation cries out for judges who love the law and who work every day to uphold its moral authority. The people rightly demand judges who follow, not make law. From everything I have seen, Judge John Roberts, you are just the man to fill that need – straight from central casting.
We unanimously confirmed you two years ago to the U. S. Court of Appeals. I am confident that after this exhaustive process you will be confirmed to the august position of Chief Justice.
I look forward to participating in the hearing with you and congratulate you on being nominated for this position.