Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics

One of the most powerful long-term benefits of the Senate hearings for Chief Justice Roberts and Justice Alito was that the American people were reintroduced to the proper and limited role of the judiciary as envisioned by our Founders. In other words, conservatives were not simply seeking to confirm judges who will be activists - albeit conservative ones - from the bench.

This proper role for judges was discussed last year when Terry Eastland wrote an editorial entitled Chief Justice Roberts: The distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging, in which he said:

On the final day of the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over...the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom?...That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.'...The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...

As for just how Roberts will go about interpreting the law--and thus carrying out his oath--his testimony last week confirmed his earlier observation that he does not have "an overarching judicial philosophy."...

There is unease among some conservatives as to how Chief Justice Roberts will turn out. Yet it must be said that Roberts has made emphatically clear his view that a judge must be restrained by the law--the rules, principles, customs, practices, and understandings that define it--and must not allow the law to be infused with the judge's own political views and personal values. In other words, the distinction between law and politics that the Judiciary Democrats do not respect lies at the heart of Roberts's approach to judging...

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."

The failure of the Judiciary Democrats to applaud comments like these, their evident desire to have justices and judges who go beyond any loyalty to the rule of law to advance "progressive" visions, demonstrates how far their party has traveled since the middle of the past century, when Justices Robert Jackson and Felix Frankfurter still sat on the Court. Jackson (whom Roberts admires, by the way) and Frankfurter sought to preserve the judiciary "in its established but limited place in American politics," wrote Arthur M. Schlesinger Jr. in 1947. But Hugo Black and William O. Douglas aimed to settle particular cases, Schlesinger said, "in accordance with their own social preconceptions"--such that, as a Yale law professor of that era said, "the less favored in life [would] be the more favored in law." By the end of the Warren Court, political judging had become the norm for most Democrats. So it has been ever since, and so it is today that a nominee committed to judicial restraint like Roberts received the reception he did from the law firm of Leahy, Kennedy, Feinstein, Biden, Schumer, Feingold, and Durbin...

As a small contribution to the public debate, here are some previous postings on the Supreme Court nomination process, with an emphasis on the proper role of the judiciary, and certain other major judicial issues:

The Kelo Decision: When Private Property Rights are Eroded, Our Freedom is Diminished
Rediscovering Proper Judicial Reasoning
Relinking Constitutional Law & Jurisprudence to the Constitution
"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"
How Original Intent Does Not Equal Conservative Judicial Activism
Are You an Originalist?
Judicial Activism: Commandeering the Public Debate & Violating the Founding Principles of America
Orrin Hatch: Don't Overstate "Advise and Consent"
Senator Santorum: Judicial Activism is Destroying Traditional Morality
"Restoration of Judicial Restraint Assists the Restoration of Good Will, Because Democratic Governance Gives Everyone Their Say"
The Ginsburg Precedent
Senator Schumer's Double Standard
Playing the Religious Bigotry Card, Again
Nothing But a Fishing Expedition
How the Left Blurs the Distinction Between Judging & Politicking
What is the Federalist Society?
U.S. Constitution: "No religious test shall ever be required as a qualification to any office or public trust"
The Religious Bigotry Continues...In Full View, For All To See
Judicial Restraint 101
A Conservative View of American Politics Today
Stuart Taylor on Judge Alito
Reflecting on Justice Alito's Confirmation Hearings: Not All Law is Politics in Robes
Elaborating Further on the Constitutional Principle of Federalism

Here are two examples of how the Left views the same issues:

"We Are Going To Go To War Over This"
Viewing the Supreme Court Nomination Battle From the Far Left

Here are other postings on this site about the related issue of the judicial filibuster debate:

The Filibuster...Continued
The Injustice of Smearing A Fellow American For Political Gain
The Senate Judicial Filibuster: Power Politics & Religious Bigotry
Mac Owen's open letter to Senator Chaffee
Senator Mitch McConnell on the Judicial Filibuster
The Foolish Fourteen: An editorial by the former Dean of BU's Law School
A Power Line overview of the filibuster debate
Revisiting the Case for Janice Rogers Brown

All posting on the judiciary at Anchor Rising can be found here.