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HOW THEY SEE IT \ Supreme Court nominee Roberts is committed to law's meaning



Published: Sat, July 23, 2005 @ 12:00 a.m.



By JOHN C. HARRISON

KNIGHT-RIDDER/TRIBUNE

CHARLOTTESVILLE, Va. -- John Roberts is one of the very best lawyers in America. That is unquestioned, as are his personal integrity and his impartiality as a judge. That is the beginning of the case to confirm Judge Roberts.

Precedent, dear to lawyers, also supports confirming him. The two most recent appointees to the court, Justices Ruth Bader Ginsburg and Stephen Breyer, were also eminent lawyers, nominated by a president whose party controlled the Senate.

Both Breyer and Ginsburg had taken stands on policy issues -- Breyer as a professor and senior Senate staffer; Ginsburg as a professor and public interest litigator.

And Ginsburg differed substantially from the justice she replaced, Byron White, and so was expected to, and did, shift the voting balance on the court in important areas. Despite those possible sources of controversy, Ginsburg and Breyer were confirmed with little opposition.

Most important is that Roberts is committed to the rule of law. As a judge, he sees the Constitution and laws as providing rules with which he may or may not agree, but that are the choices made by the people and their representatives that judges must enforce.

Just how important that is can be seen by paying attention to the attacks on Judge Roberts that have begun and will escalate. They have been and will be almost exclusively about policy bottom lines, about what the law should be, not about what it is.

If John Roberts is confirmed, we will be told, very bad things will happen. His opponents will make it sound as if he is running for the Senate, as if the question is whether he supports this right of the people or that power of the federal government. Is he pro-life or pro-choice? Where does he stand on affirmative action?

The difference between the law and what is desirable will not feature in the attacks. No group will take out ads saying that the Constitution permits something very unjust, like taking people's houses and giving them to developers, and that John Roberts must be defeated because he denies that the Constitution permits this bad thing.

Proper question

Whether Judge Roberts really does care more about the law than about the who wins and who loses on the bottom line is a proper question. But who will win and who will lose on the bottom line is not the right question for a candidate for the Supreme Court. It is the right question for a candidate for the Senate.

Not only is it the wrong question, but making the bottom line the issue can take us further toward being a country in which nominations to the courts really are just like elections for the Senate, a country in which judges are chosen because they favor or oppose drilling for oil in the arctic. That would be a terrible way to run a government.

We would have policy being made by the least democratic process, the judicial process. John Roberts has been nominated to the first Supreme Court vacancy since 1994. Eleven years is a long time between elections, and life tenure, which Justices have, is too long for legislators. If the Supreme Court becomes nothing more than a legislature, because nominations are treated like elections to a legislature, it will be a legislature that does a very bad job of representing the people.

Policy matters for legislatures, not courts. If a senator asks Judge Roberts whether he will protect workers, the best answer is that whatever laws Congress decides to pass to protect workers, he will enforce as written, neither more nor less. Power to make law and responsibility for the laws made do not belong with judges. Keeping that straight is the rule of law, and that is what we can expect from John Roberts.

X John C. Harrison is the D. Lurton Massee professor of law and Horace W. Goldsmith research professor at the University of Virginia School of Law. Distributed by Knight Ridder/Tribune Information Services.




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