Tuesday, September 27, 2005
The Confirmation Process
Over the past several days, a number of Senators have publicly released their respective positions on Judge Roberts’ nomination to be the next Chief Justice of the United States. A number of those indicating that they will vote against the nomination have stated that while the Judge is qualified, even well qualified, they do not know enough about his views or positions on vital issues. Several of these Senators who have concluded that they will vote against the nomination, including three on the Senate Judiciary Committee, are Catholic. Since MOJ is a forum for developing Catholic legal theory, I would like to offer a brief comment on the possible contribution Catholic legal theory can make to the present debate in the Senate on Judge Roberts’ nomination.
It appears that most Senators who have spoken so far have concluded that the Judge is qualified to sit on the Supreme Court and to be the Chief Justice. However, their “concerns” (a word that has crept up in various discussions about Senators’ positions) really seem to be that they do know a good deal about the Judge and his positions, but they disagree with them. I believe that any judicial candidate, including Judge Roberts, must be cautious in giving too much detail about one’s views on matters that are likely to come before the Court in the future. Being a judicial officer requires the person holding the office to have an “open mind” so that he or she can fairly hear and understand the positions of the parties and their views of the applicable law. The judge must then consider these views objectively to search for the truth about the case. This has a parallel with the Catholic notion of the search for truth as the quest for the “transcendent and objective” and the moral order that follows. In short, this means considering the case beyond personal knowledge and prejudices. The judge has to consider what each party has presented and argued. Judge Roberts appears to have demonstrated that he will pursue this approach, and, in fact, that is what he has done as a Circuit Court of Appeals Judge.
Interestingly, much of this Catholic contribution to the judicial process can apply to the work of the Senator. For example, let’s take the case of a Senator who is known to be a strong supporter of civil rights legislation. A colleague in the Senate intends to submit a bill addressing civil rights issues. Will the first Senator automatically be a co-sponsor of the colleague’s proposal? In short, can this Senator and the Senator’s constituents immediately say they know what the Senator’s position is? Most likely not. For prudential, political, and other considerations including objectivity, the Senator would likely have to say that the bill merits serious study. The Senator would probably want to know what other colleagues think after they have studied the text. Moreover, there would inevitably be some discussion about whether friendly amendments could be made to the bill to reflect other views or would a completely different bill have to be submitted to get those views into the discussion. This, too, is an exercise in objectivity and looking beyond one’s personal knowledge and prejudices.
If it works for Senators, might it also work for judges? RJA sj