Washington – Judge John Roberts promised today that if he is confirmed as chief justice, he will serve as a humble umpire and leave policy-making to elected officials.
“Judges are like umpires. Umpires don’t make the rules; they apply them,” Roberts told the Senate Judiciary Committee in his opening statement at the end of its first day of hearings on his nomination to the Supreme Court. “It is a limited role. Nobody ever went to a ball game to see the umpire.”
Roberts’ brief opening remarks sought to reassure senators of both parties who spent much of the hearing griping that the federal courts, in the last five decades, have played too active a role in interpreting the Constitution and making government policy.
Roberts vowed to be humble, neutral, modest and respectful of legal precedent, signaling the Senate that he does not view his nomination as a mandate to embark on philosophical crusades or to upend established doctrine.
Left unsaid, however, was to what extent the judge’s view of judicial restraint applies retroactively and would prompt him to vote to curtail or overrule past decisions like Roe v. Wade, the landmark abortion rights case, which his fellow conservatives view as the hallmark of legal activism.
Sen. Sam Brownback, R-Kansas, called Roe v. Wade the Supreme Court’s “most notorious exercise of raw political power” and urged Roberts to try to overturn the decision.
“The Supreme Court frequently has overruled prior precedents,” said Brownback. “In a just and healthy society, both righteousness and justice travel together.”
Roberts is due to begin at least two days of cross-examination this morning. Democratic senators said they are determined to get specific answers from him on abortion, religion, presidential power and other contentious matters.
The stakes are high. There have been 43 U.S. presidents, but Roberts would be just the 17th individual to hold the lifetime office of chief justice.
Several senators noted today that the 50-year-old appellate judge appeared in good health and, given normal life expectancy, could occupy the office for 35 years.
“You should be prepared to explain your views of the First Amendment, civil rights, environmental rights, religious liberty, privacy, workers’ rights, women’s rights and a host of other issues relevant to the most powerful lifetime post in the nation,” Sen. Charles Schumer, D-N.Y., told Roberts.
Americans “need to know – above all – that if you take stewardship of the high court, you will not steer it so far out of the mainstream that it founders in the shallow waters of extremist ideology,” Schumer said.
Even critics acknowledged that Roberts enters the hearings favored to win confirmation, in part because his ascent to chief justice won’t by itself move the court ideologically. It would have been difficult for President Bush to nominate a chief justice more conservative than the late William Rehnquist, the man Roberts is named to succeed.
Much of the partisan energy remains focused on another Supreme Court seat – that being vacated by retiring Justice Sandra Day O’Connor, who has been a pivotal swing vote in many historic decisions.
A surprise development in the next 10 days could change things, but “the conventional wisdom going into any hearing is that the nominee is going to be confirmed,” said Ralph Neas, president of the liberal group People for the American Way.
Democrats have not given up their digging. Sen. Ken Salazar, D-Colo., and a group of other Democratic senators wrote Bush today asking him to release withheld records from 16 cases that Roberts worked on during his term as deputy solicitor general in the administration of the president’s father.
“There should be no secrets from the American people in the confirmation process for a chief justice,” Salazar wrote. “The people deserve to know the complete truth about Judge Roberts, the good and the bad alike.”
In his opening remarks, however, Roberts sought to portray himself as well in the American mainstream.
When serving in the Reagan and first Bush administrations, Roberts said, he always found it moving to appear before the Supreme Court. But it was not until after he was in private practice, and opposed the U.S. government at the court, that he truly appreciated the majesty of the Constitution.
“Here was the United States, the most powerful entity in the world, aligned against my client. And yet all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law,” said Roberts. “That is a remarkable thing.”
Roberts said that judges should view their jobs, and legal precedent, with “humility” and “have the modesty to be open in the decisional process to the considered views of their colleagues.”
“If I am confirmed I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans,” Roberts said.
“I will confront every case with an open mind,” he said. “And I will remember that it’s my job to call balls and strikes and not to pitch or bat.”
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