Jewish World ReviewAugust 1, 2005/ 25 Tammuz,
The misrules of judicial confirmations
One of the more fatuous instructions to the Senate Judiciary
Committee is a July 17 lead editorial in The New York Times, "The
Right Kind of Justice." Before Roberts' nomination was announced,
The New York Times demanded that, "senators should be pressing the
president to choose a candidate who reflects the philosophy of the
vast majority of Americans."
First of all, where in the Constitution is the requirement that any
federal judge must mirror "the philosophy of the vast majority of
Americans?" The New York Times gives no clues about how to determine
the "philosophy" of most Americans. Do they mean first hiring a
grand consortium of pollsters? If so, how would this question be
phrased to the citizenry? What would be the definition of this
majoritarian "philosophy" to guide the senators in confirming a
Let's suppose, however improbably, that this challenge could be met
and Sen. Charles Schumer (D-N.Y.) will finally be able to tell us,
with specificity, how he decides whether any judicial nominee is
"out of the mainstream," and is thereby to be tossed aside as
If, however, a majority of the Senate eventually agree that a
judicial nominee must reflect most Americans' philosophies, a stern
voice of one of our founders, James Madison, may be summoned by a
nonpartisan historian of the creation of the Constitution and its
Bill of Rights.
Madison, a principal architect of the document that distinguishes us
from all other countries, warned that our "great rights" must be
protected, particularly in times of fear or runaway partisanship
against the storms of shifting popular tides. The greatest danger to
our liberties, Madison said, is to be found "in the body of the
people, operating by the majority against the minority." Schumer's
"mainstream" can run us aground on the shoals of mass
Were I on the Senate Judiciary Committee, I would ask a nominee's
reaction to Madison's concern about judicial independence when
confronted by marauding majoritarianism. Schumer has another
question for these confirmation hearings that is shared by many
senators on both sides of the aisle. Quickly, after John Roberts Jr.
was nominated to the Supreme Court, Schumer, with his customary
graciousness, presented him with an extensive list of questions the
senator intends to ask him during the hearings. This was one of
"Is it appropriate for the Supreme Court to overturn a well-settled,
precedent, upon which Americans have come to rely?"
Do you think that Schumer had Roe v. Wade in mind? But the actual
pertinence of the question may have escaped the senator. For many
years, racial segregation, both before and after the Civil War, was
a well-settled Supreme Court precedent. So was the denial of the
vote to women. Will Schumer include those, and other such
precedents, in addressing this question to Roberts?
A number of organizations that press the senators to adhere to their
criteria for confirming federal judges insist on diversity
diversity of race and gender as qualifications for the bench,
especially for the highest bench in the land.
In the July 22 Newsday, the celebrated Anita Hill now a professor
of social policy, law and women's studies at Brandeis University
wrote an Op-Ed article about John Roberts' possible ascension:
"Nomination a step back for diversity." This nomination of Roberts,
she said, with his "very narrow and elite credentials," does not
"reflect the experiences of the vast majority of Americans."
She does not specifically mention the experiences of blacks, but
some younger readers may not remember that despite Anita Hill's
strenuous attempt to disqualify him, Clarence Thomas sits on the
Supreme Court. She does ask: Why "not nominate the first Latino to
the court" or "a woman" to replace outgoing Justice Sandra Day
Such demands for "diversity" invite adding religion, class and other
categories to come.
I have none of the above qualifiers for John Roberts Jr., and will
wait for the hearings to see whether my questions are asked and
how they are answered. Mine will begin with how deferential does he
believe the Supreme Court should be to presidential powers in a time
of war, based on his recent District of Columbia Circuit Court
agreement in Hamdan v. Rumsfeld, denying constitutional protections,
especially due process, to detainees at Guantanamo Bay.
His role in that ruling, and other rulings on, for example, the
Fourth Amendment will speak more to his performance in the nation's
highest court than will any regard to his gender, race or religion.
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