William Fisher

NEW YORK, Sep 12 2005 (IPS) — The preservation of congressional power over the judicial branch of government emerged as the single most important theme running through the first day of the confirmation hearings on the nomination of John Roberts to be the next chief justice of the U.S. Supreme Court.

Members of the Senate Judiciary Committee – 10 Republicans and eight Democrats – appeared to be unanimously opposed to “activist judges who legislate from the bench”.

But in their 10-minute opening statements, it was clear that senators on the political left and right meant very different things by “judicial activism”.

For those on the right – most Republicans – the term meant the Supreme Court should cease overturning laws passed by Congress because they violate “unemerated rights” not specifically set out in the Constitution. These legislators believe there are no unenumerated rights. Their view is known as “strict construction”.

For those on the left – most Democrats – “judicial activism” means viewing the Constitution as a “living document”, which changes over time because of circumstances the Founding Fathers could not have possibly anticipated when they framed the Constitution back in 1789.

“Strict construction” would result, for example, in overturning a woman’s right to an abortion because the Constitution makes no mention of any right to privacy. It would also roll back much of the civil and voting rights legislation of the past half century.

The outlines of the hearings, which begin in earnest tomorrow when senators get a chance to question the nominee, became clear today in the 10-minute opening statements by each committee member.

Sen. Patrick Leahy, Democrat of Vermont, the top Democrat on the committee, said the key question was whether the Supreme Court would “continue its trend toward limiting people’s rights”.

His view was echoed by Sen. Ted Kennedy, Massachusetts Democrat, who said Hurricane Katrina exposed the “gross disparities” in U.S. society, and said he was “deeply concerned” that Roberts’ previous record provided little reassurance that the Supreme Court would address these inequities.

As widely predicted, Sen. Diane Feinstein, California Democrat, commented that the Supreme Court has struck down more than three dozen laws affecting women’s rights, and said she was troubled that Roberts would play a role in continuing this trend.

Most of the Republican Senators made it clear that they were satisfied by Judge Roberts’s deeply conservative record based on his service in the Department of Justice under Pres. Ronald Reagan and as Deputy Solicitor General under Pres. George H.W. Bush.

As strict constructionists, most of these senators would have voiced strenuous objections if the Supreme Court had ruled on the legislation hurriedly passed by Congress in March to prevent lower courts from ordering the removal of a severely brain-damaged woman’s feeding tubes.

Their objections would have been based on the fact that the Constitution makes no mention of end-of-life decisions and the principle of the separation of powers between the legislative, executive and judicial branches of the U.S. government.

Sen. Orin Hatch, Utah Republican and former chairman of the Judiciary Committee, summed up the Republican position. The question, he said, is whether the Supreme Court will judge each case “on its merits” or become “super legislators”.

Sen. Sam Brownback, a Republican from Kansas, told the nominee, “We need a more modest court, one that looks at the Constitution the way it is, not the way we might wish it to be.”

He was critical of recent judicial decisions “re-interpreting the definition of marriage” and “deciding who should live and who should die”. Brownback said that if the court had never affirmed Roe v. Wade – the case that recognised a woman’s right to abortion – millions of babies “might be alive today”.

He said that if the Supreme Court now overturned Roe, “it would not make abortion illegal, it would simply place it back where it used to be” – in the hands of state legislatures.

When, late in the afternoon, Judge Roberts addressed the Committee, his statement was predictably something of an anticlimax.

In less than five minutes, Roberts likened the role of a Supreme Court justice to that of an umpire at a baseball game. “Umpires don’t make the rules, they enforce them. Nobody ever went to a ballgame to see the umpire. My job is to call balls and strikes, not to bat,” he said.

He added: “I come before you with no agenda, no platform. But I have a commitment. I will confront every case with an open mind.”

He said he would be “vigilant” to protect the independence of the judiciary.

Roberts is currently a judge on a Federal Court of Appeals – a position to which the same senate committee confirmed him unanimously two years ago. He was chosen to be an Associate Justice of the Supreme Court, but nominated to be Chief Justice upon the death of Chief Justice William H. Renquist.