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August 02, 2005
Skip the Litmus, He Passes the Brains Test
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Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law." |
The more I read of our debate, the more concerned I get about the independence of the judiciary, and the politicization of the process. Lady Justice is blind, which is to say she does not prejudge issues, so forcing a nominee to answer questions regarding how he would treat existing precedent is extremely problematic. If we have the hearing Eddie suggests, then we will have a situation quite like the situation Justice Scalia faced with the Pledge of Allegiance. Having expressed his view publicly on the issue, and the particular case itself, he had to recuse himself once Michael Newdow petitioned the Court. What litigant will not petition for recusal of Justice Roberts in a particular case where it is in the client's interest to get him removed from the case? Thus, on hot-button issues, he would be a non-factor, and we would have an 8-member Court, which cannot issue opinions when the divide is 4-4.
In any event, the ideal of an independent judiciary requires nominees of intelligence and good judgment, not any particular result in any particular case. Liberals concerned about Judge Roberts would do well to remember that more Republican appointees have become liberal on the Court (including Justice Scalia, if one looks at his flag-burning opinion, upholding the right to burn the flag for political purposes), than Democrat appointees have turned conservative. Judge Roberts surely passes the intelligence and judgment tests, and, therefore, questions about his particular views on particular issues or cases should be considered inappropriate, and, indeed, adverse to the larger interests of the country.
Posted at August 2, 2005 10:42 AM
Comments
There are in fact good examples of judges appointed by Democrats who turned out to be more conservative than the presidents who appointed them expected -- Justice Byron White, for example. It is just that Republican presidents have appointed most of the Supreme Court justices since the Truman era.
Also, much of the anger against Justice Warren stemmed from his decision in Brown v. Board of Education, which was denounced at the time by conservatives. Do conservatives today believe that decision was wrongly decided and that Plessy v. Ferguson was correctly decided -- that segregation is permitted by the Equal Protection Clause of the U.S. Constitution?
Posted by: Ellen Saideman at August 5, 2005 06:27 AM