Rule of Law

John Roberts likes Dr. Zhivago, North by Northwest, and the legal process. These are the essential facts that can be divined from last week's Senate hearings on Judge Roberts, who looks to be the next chief justice of the Supreme Court.

The movies were offered as a partial response to Senator Charles Schumer's irritated complaint, by analogy to movie watching, that Roberts was not providing substantive answers to questions posed by the members of the Judiciary Committee. This has also been the central attack on Roberts' confirmation performance from other congresspeople and media commentators.

After naming a couple of his famous flicks, Roberts answered Schumer's real concern by stating that "in issuing an opinion," a justice relies "upon his participation in the judicial process. He confronts the case with an open mind. He hears the arguments. He fully and fairly considers the briefs. He consults with his colleagues, goes through the process of issuing an opinion. And in my experience, every one of those stages can cause you to change your view."

The Senators chastised Roberts for not revealing how he would substantively rule on specific issues likely to come before the Court. But Roberts explained that the confirmation hearings are "not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes." This response really illuminated the thrust of Roberts' entire approach to the confirmation hearings. If, as he contends, it also represents his fundamental approach to judicial decision-making, he will be remembered as one of the nation's greatest justices.

These exchanges highlighted a basic disconnect between the nominee and the legislators. The Senators assume that Roberts will take an outcome-oriented approach to the cases that come before the Court, or, at least, that he will have a particular agenda to advance in deciding each case. Roberts, however, affirmed again and again that he will employ a process-oriented approach--that he examines each case from the "bottom up" instead of superimposing onto any case an overrarching judicial "philosophy."

This deference to the rule of law, without resort to personal ideology, is precisely what this Supreme Court, and the nation, need right now. It is not, unfortunately, what any particular senator wants to bring back to his or her constituency. Indeed, the problem at last week's confirmation hearing was not with Roberts, but with the shortsighted desires and politically based assumptions of most of the members of the judiciary committee.