What to Expect During the Roberts Hearings

From TheFactIs.org:

On Monday, September 12, the Senate Judiciary Committee will begin holding hearings on the nomination of John Roberts to serve as America's 17th Chief Justice of the Supreme Court. What can Americans expect during those hearings?

First, if Democratic liberals hold true to past form, they will – obliquely, subtly – inquire into Roberts' religious beliefs. This is a game plan they followed with many of the nominees to the federal appellate courts, including William Pryor and Pricilla Owen. That is, until Family Research Council, the Catholic League for Religious & Civil Rights and others exposed their tactics in the "Justice Sunday" broadcast. (You can find more information about all this at www.frcaction.org )

With appellate court nominees, the liberal extremists cloaked their inquiry as one into "deeply held beliefs." But everyone knows what they were up to.

Note two things about such an inquiry. First, it is simply outrageous. It suggests that people of traditional religious faith are unfit to be judges on the federal courts. But the truth is that such people have served as judges since the first days of our republic. And this is fully in line with the Founding Fathers' intent – President John Adams, for instance, asserted: "It is religion and morality alone which can establish the principles upon which freedom can stand."

Second, note this – the attempt to disqualify a judicial nominee because of his religious beliefs is unconstitutional. Let me remind you of Article VI, Section 3: "no religious test shall ever be required as a qualification to any office or public trust under the United States." What the Democrats have been attempting is simply that, whether pursed directly or indirectly.

Since FRC, the Catholic League and others exposed the tactics of the Left during the hearings of federal appellate court nominees, it is doubtful (but certainly not impossible) that they will directly inquire into what they will call the nominee's "deeply held beliefs." However, it is very likely they will try to do so indirectly, by examining Roberts' "judicial philosophy."

Of course, it is fair to consider a nominee's judicial philosophy. In fact, so long as that is what a senator is really doing, it's essential. A judge will bring the same jurisprudential stance or philosophy to each and every case. Thus, to learn about the judge's philosophy is to learn what kind of judge he will be.

There are basically two kinds of judicial philosophy – that of restraint and that of activist social-engineering. Judges of the latter type seem to feel it is up to them to "do justice" as they see fit. While we might argue whether that position is philosophically sound, the relevant question for an American citizen is whether that concept of judging accords with the system of government established by our Founding Fathers.

Our Founders established a republican form of government, a system of limited government and checks and balances. They established a "federal" system, with some powers delegated to the national government, and others retained by the states. They established a system of shared national power – legislative power in the Congress, executive power in the President, and judicial power in the Supreme Court (and whatever other courts the Congress should create).

An activist judiciary upsets this finely wrought system. In essence what an activist judge does is to settle disputed social issues. But such issues are properly the domain of the legislature. In the legislature (Congress), citizens, through their elected representatives, debate, argue, horse-trade and compromise. It isn't pretty, but it's democracy. If a judge takes such disputed social issues out of the hands of the Congress, he is usurping the legislative role. Such a system would be one of judicial tyranny, not democracy.

By contrast, an advocate of judicial restraint accepts the limitations the Founders placed not only on the judiciary but on every aspect of government. Judicial restraint accepts the role the Founders intended for the courts, deciding the narrow issue presented in a case, not reaching out to set national policy. Such a judge interprets the constitution by the plain language, logic and structure of the text. He does not substitute his personal policy preferences for that of the legislature.

During the upcoming hearings on John Roberts, the Senate liberals would be entirely within their rights to inquire into the jurisprudential philosophy that Roberts will bring to judging. But they are entirely wrong to mask an (unconstitutional) inquiry into his religion under the rubric of "judicial philosophy".

As John Adams and common sense make clear, it is more likely that a person of faith will be a good judge than a bad one. But in any case, the only question should be whether a nominee will set aside personal views and decide a case impartially and on the merits.

Saunders is the Senior Fellow and Director of the Family Research Council's Center for Human Life & Bioethics. The views expressed are his and are not meant to represent official institutional views of FRC.

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