We've had another week of speculation about how the Senate hearings on Supreme Court nominee John Roberts will go, which means another week of incoherent nonsense from people who either don't know what the Constitution is supposed to be or don't care.
The opposition to Roberts seems to have coalesced into two major talking points:
1. Yes, it's true that he was overwhelmingly confirmed for his appointment to the appeals court, getting the votes of Republicans and most Democrats. But the appeals court, after all, must deal with settled law. The Supreme Court, on the other hand, makes law; so it wasn't important before to know Roberts' judicial philosophy, but now it is a vital necesssity.
2. Yes, John Roberts is obviously qualified to be on the court; who would better understand both the Constitution and the workings of the court than someone who has argued 39 cases before the court and, by all acccounts, done it better than just about anybody? But that doesn't tell us what he'd do on the court. Does he care about justice? Will he side with workers or management, polluters or the environement, the poor or the priveleged?
The court is not supposed to make law, of course, merely interpret it, but the fact is that many of Roberts' opponents like the fact that the court has operated as a kind of super-legislature. Those who haven't been able to get their agenda through the legislative process have been able to get it through the courts, without all that messy stuff about political debates and having to convince elected representatives to act. And if you believe that this de facto creation of law is the court's job, then naturally you think it should pick sides and assign losers and winners in the disputes that come before it. How has our notion of justice evolved, and what do conditions today require us to do?
What the court was meant to do is fairly simple and straighforward (and if it sounds downright bug-eyed out of the mainstreaam, it's an indication of how far we've drifted from the original concept):
1. The court accepts a case involving a duly-enacted law that has been challenged.
2. The court tries to determine, as much as it can, what the intent was of the people who passed the law and what the effects of the law will be.
3. The court rules on whether the law's intents and effects are consistent with the dictates of the United States Constitution.
Period. End of duties. It doesn't matter which side will win or lose in the dispute. It doesn't matter whether the law suits our current notions of what is right or what is wrong. It matters only what the rules are, and whether those rules are being followed.
I've heard economics professor Walter Williams use the analogy of a baseball game. You do not want the umpire to decide which team should win and which should lose. You certainly don't want him changing the principles of the game in the middle of the game. "Well, I know that it's always been three strikes and you're out and four balls and you walk, but I think for today's game, we'll make it four strikes and three balls, because one team has really weak hitters, and we want to give it a fair chance." We ask -- demand -- simply that the umpire understand the rules of the game and apply them, as best he can, fairly and consistently for all players each play of the game.
(I've been a lifelong poker player, so I'll use that game as an analogy as well. Most decks of cards come with a little chart showing the rank of poker hands, from high-card only all the way up to a royal flush. As a poker-party host, how many people would I get to play with me if I said, "Never mind the chart; in most hands, a flush will beat a straight, just like the rules say; but in some hands, a straight will beat a flush, and I'll tell you which ones after all the betting is over"?)
Consider our life in a republican democracy a baseball game. The Constitution comprises the rules of the game. The Supreme Court is our umpire, making sure the same rules apply to the same people in the same way all the time. Anything else would be chaos -- come to think of it, it IS chaos. The players come and go, the teams move from city to city, the salaries go up. But year after year, a player goes onto the field and knows he will be judged by the same rules as everybody else. But don't the rules change? There wasn't always a designated hitter for the pitcher. But that's not the umpire's concern, is it?
I've been a board member of several nonprofit organizations, which have both bylaws and operating guidelines that govern, for example, how meetings should be conducted (mostly coming from the most straightforward, common-sense book of rules ever devised). If we didn't like the meeting rules, we changed them, as long as the changes were consistent with the bylaws. Otherwise, we went through the tougher challenge of changing the bylaws. The bylaws might, for example, define a quorum as "one person more than half the membership" and also permit us to increase the number of board members from time to time. If our board went from 22 people to 24 people, that would change the quorum from 12 to 13, as dictated by the bylaws. If we kept having trouble conducting meetings because not enough people showed up, and we wanted to change the meaning of "quorum" to "at least a third of the membership," that would require a bylaw change. Only by keeping faith with the bylaws could we be sure of conducting legitimate business in a coherent way, with rules everyone understood and followed.
The same rules applied to all in the same way; that's the only rational definition of fairness I know. I think a useful way of judging any proposed law is to ask, "Does it apply to all of us," or just to a speficic, legislatively designated group. If it's not for everyone, it is suspect.
Here's what I would urge a senator to ask Judge Roberts at his confirmation hearings: "A challenged law comes before the court. You determine what the legislative intent was and what the probable effect of the law would be. In determining the constitutionality of that law, what proportionate weight would you give a) amendments to the Constitution, b) the language of the Constitution itself, c) the intent of the drafters of the Constitution, d) the Supreme Court's own precedents, e) the state of the common law as it has evolved to this point and, f) your own sense of what is needed for American society at this point in history?"
That doesn't make the baseball analogy hold up very well, I realize. You wouldn't ask an umpire to detail his "philosophy of baseball." His opinion of that is of no consequence. But we have so many conflicting viewpoints of what constitutes the rules of the game for the law in America that such a query seems legitimate, especially for someone like Roberts, who has left no lengthy paper trail of opinions letting us know his bedrock principles.
