Why I Like John Roberts

On the way home tonight, I heard on NPR the very end of John Robert's "opening statement" in the hearings on his confirmation. I found what little I heard to be appealing, so I got the full transcript of his statement (from USA Today of all places). (BTW: USA Today is actually turning into a pretty decent newspaper. Check it out some time).

The most puzzling part of the statement was this:

Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

That analogy is completely bogus. The difference between an umpire and a judge is as simple as it is profound: the rules an umpire applies are so clear they require no interpretation; the rules a judge are anything but clear. The role of an umpire is to apply undisputed rules to disputed facts. The role of a Supreme Court Justice is to apply disputed law to undisputed facts.

In a way, I find the absurdity of the umpire analogy comforting. Roberts is, by all accounts a very, very smart man with a ton of experience in Supreme Court practice. I am reasonably confident, therefore, that he recognizes how lame the umpire-to-judge analogy is. If that is so, then the only explanation I can think of for him to use the analogy is to reassure the Right that he is not an activist. Yet, while the analogy may actually serve that purpose, it does not actually say anything about how Roberts will actually approach the only really important cases: where it is the law that is in dispute, not the facts. Perhaps it is I who is naive, but I take some comfort in the notion that Roberts has endeavored to appear to assure the Right without actually doing so.

The speech also includes emotive paeans to the endless fields of his boyhood home in Indiana and the glories of "the rule of law" that serve no purpose but to wave the flag. But interspersed in this I think is actually the nub of John Roberts:

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

* * * *

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

Perhaps this is so much BS. Perhaps this is simply his way of trying to reassure the Left. But, I don't think so. Everything I have read about Roberts leads me to believe that this is what he truly believes. And, if so, I am satisfied. I can ask no more of any person nominated for the Supreme Court than that he come to each case with an open mind, that he fully and fairly analyze the arguments presented, that he be open to the considered opinions of his colleagues on the bench, and that he decide every case based on the record, according to the rule of law as he understands it, without fear or favor, to the best of his ability.

In short, I am pretty comfortable with Roberts. I just hope the next one is as good.