Judge Roberts Says Role of Judge Limited

In a questionnaire that was released yesterday by the Senate Judiciary Committee, Judge Roberts spoke out against judicial activism.  In response to a written question, Judge Roberts, in discussing the role of the judge, said that anyone selected as a federal judge should approach the position with personal modesty and humility.  He went on to say that judges must be constantly aware that their role, while important, is limited.  They do not have a commission to solve societys problems, as they see them, but simply to decide cases before them according to the rule of law.

 

In response to a question about policy-making, Judge Roberts said, Courts should not intrude into the areas of policy-making reserved by the Constitution to the political branches.  With regard to the role of precedent, Judge Roberts said that while it is important, it is not the final word on a constitutional issue.  This was similar to Attorney General Gonzaless statement last week that a Supreme Court Justice should respect precedent but is not bound to follow it if he feels it is wrong. In fact, the Supreme Court has overturned its own previous decisions, a perfect example of which is found in the Dred Scott case involving slavery and the entire separate but equal doctrine.

 

Not surprisingly, some Senators and public interest groups have increased the call for scrutiny over Judge Roberts because of his Catholic faith.  As mentioned in earlier postings, the idea that there would be a religious litmus test to serve on the Supreme Court is not only repugnant, but also unconstitutional.  The Court specifically has no religious test for serving in federal government. The idea that John Roberts would somehow be disqualified because he takes his faith seriously is outrageous.

 

Judiciary Committee members requested information concerning John Robertss participation in Bray v. Alexandria Womens Health Clinic, the case that I argued twice before the Supreme Court of the United States.  John Roberts represented the interest of the United States in the statutory construction case.  The idea that this would somehow be controversial seems a bit ridiculous since we won the case 6-3 and had some of the more liberal members of the Court rule in our favor.  Also, at issue was the application of a statute known as the Ku Klux Klan Act to pro-life protests.  The Court found that opposition to abortion was not discrimination against women and, therefore, this statute was inapplicable.  While this was a significant victory for those who are on the side of life, the role of the government was to support the appropriate construction of the statute, which John Roberts did.

 

I expect over the next several weeks that we are going to be hearing a lot in the escalating issue over the confirmation of Judge Roberts.  Interestingly, most Senators are coming out in favor of Judge Roberts.  Some groups like the ACLU and People For the American Way have questioned John Roberts decisions as they relate to the War on Terror.  Recently, Judge Roberts joined an opinion of the D.C. Court of Appeals affirming the Presidents authority under the Constitution as Commander in Chief regarding the detainees at Guantanomo Bay.  This decision was legally correct and represents, in our view, the proper role delegated between Congress, the courts and the Executive Branch of government. 

 

For frequent updates on the judicial nomination fight, please see our website at www.aclj.org.  For information about John Roberts background, simply click here.