John Roberts Nomination Hearing

Sometimes I hate the internet. Like now, when I have limited time and I'm trying to find the text of John Roberts' statement to the Judiciary Committee yesterday. The New York Times has it, but they want people to register, and I don't want to give the NY Times the satisfaction of having another registrant. But did the Senate Judiciary Committee give exclusive rights to the text of Robert's speech to the NY Times? I can't seem to find it anywhere, at least through the first couple pages of google search results. I can't even find it on the Juciciary Committee's website.

But I did find this, and I have to say I'm favorably impressed. It's from the Judiciary Committee's member statements at the Roberts hearing yesterday (naturally, they only have the text of the members' statements, but not the text of Roberts' statement). This statement is by Sen. Orrin Hatch (R-UT), and he seems to actually understand the function of the judiciary as well as the Senate's role under the "Advise and Consent" clause in the Constitution. Some excerpts:

Let me mention one example relating to my home state of Utah to show how the confirmation process has changed.

President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5, 1922. That same day, the Judiciary Committee Chairman went straight to the Senate floor and, after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed.

There was no inquisition, no fishing expedition, no scurrilous and false attack ads. The judicial selection process has changed because what some political forces want judges to do has changed from what America’s founders established.

America’s founders believed that separating the branches of government, with the legislature making the law and the judiciary interpreting and applying that law, is the lynchpin of limited government and liberty. James Madison said that no political truth has greater intrinsic value. Quoting the philosopher Montesquieu, Alexander Hamilton wrote in The Federalist no.78 that “there is no liberty if the power of judging be not separated from the legislative and executive powers.”

Times have changed. Today, some see the separation of powers not as a condition for liberty but an obstacle to their political agenda. When they lose in the legislature, they want the judiciary to give them another bite at the political apple. Politicizing the judiciary leads to politicizing judicial selection.

[W]hat judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the Canons of Judicial Ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them.

I will be the first to admit that Senators want answers to a great many questions. But I also have to admit that a Senator’s desire to know something is not the only consideration on the table.

Some have said that nominees who do not spill their guts about whatever a Senator wants to know are hiding something from the American people. Some compare a nominee’s refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment.

These might be catchy sound bites, but they are patently false. That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to Senators and protect their impartiality and independence.

Senator Hatch finishes this way:

We must use a judicial, rather than a political, standard to evaluate Judge Roberts’ fitness for the Supreme Court. That standard must be based on the fundamental principle that judges interpret and apply but do not make law. Judge Roberts, as every Supreme Court nominee has done in the past, you must decide how best to honor your commitment to judicial impartiality and independence. You must decide when that obligation is more important than what Senators, including this one, might want to know. As the Senate has done in the past, I believe we should honor your decision, and then make our own.

Well said. But how much coverage did Senator Hatch get on any of the news programs last night or in any of today's newspapers this morning? Probably none, because his is the voice of reason. The news coverage goes to the voices of the attack dogs.

Which is a pity. The American people are capable of recognizing reasonable men and women making reasoned statements. And that must be the problem the media has. If they broadcast the reasoned arguments, then the American people would see the contrast and would reject the snarling of the attack dogs.