The proper role of judges

Rebecca Hagelin

8/30/2005 12:00:00 AM - Rebecca Hagelin

The American Bar Association says John Roberts is “well qualified” to sit on the Supreme Court. Former Attorney General Edwin Meese calls him “a judge of unquestionable integrity and proven fidelity to the Constitution and the rule of law.” After he made the rounds on Capitol Hill, Sen. Joseph Lieberman, D-Conn., labeled him “a credible nominee” who apparently lacked “a record that in any sense could be described as extremist.”

As one Democratic lawmaker told The Washington Post, “This was a smart political choice from the White House. I don’t think people see a close vote here.”

But some folks on the radical left beg to differ. They seem determined to trash John Roberts any way they can.

Consider the now-infamous TV ad from NARAL -- the one that accused Judge Roberts of defending abortion-clinic bombers. The ad was so filled with outright lies and misrepresentations that pressure from responsible liberals forced NARAL to pull it from the air.

The ad was utterly indefensible. As the Post noted in an editorial headlined “Abortion Smear,” the ad “graphically -- and wholly unfairly -- seeks to tar Judge Roberts.” Post columnist E.J. Dionne found it “outrageous.” The New York Times called it “a cheesy 30-second TV spot unfairly linking Judge John Roberts Jr. with abortion clinic violence” and urged NARAL to apologize to Roberts.

The condemnation of the NARAL ad is welcome. Still, it’s only the worst of the accusations being slung around. “With every passing day, it is becoming clearer that John Roberts is one of the key lieutenants in the right-wing assault on civil-rights laws and precedents,” said Ralph Neas of People for the American Way. Others have piled on, from NOW to Planned Parenthood. And liberal politicians have responded.

According to Sen. Ted Kennedy, the papers the White House released regarding Roberts shows that “he was on or beyond the outer fringe of that extreme group eager to take our law and society back in time on a wide range of issues.” Sen. Patrick Leahy sees “an eager and aggressive advocate of policies … tinged with the ideology of the far-right wing of his party,” whose views represent “a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy and access to justice.”

Sounds like a caricature, doesn’t it? That’s because it is. What actually frightens the radical left is the fact that John Roberts is an originalist -- someone who applies the Constitution as it is written, not as he or any other unelected official wishes it were written.

It was refreshing to read what Judge Roberts told the Senate Judiciary Committee. “Judges must be constantly aware that their role, while important, is limited,” he wrote in his official questionnaire. “They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

It’s a view the Founding Fathers would have appreciated. As Thomas Jefferson wrote: “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”

Roberts seems to appreciate the need for this common sense. As Robert Bork wrote in National Review: “I believe John Roberts will not create new constitutional rights out of whole cloth, as many of his soon-to-be colleagues have done. I cannot, for example, imagine him voting to invent a right to homosexual marriage, as many of the justices seem to do.”

As Bork notes, activist liberal justices act with thinly disguised disdain for popular will. “In two cases inventing constitutional rights for homosexuals, the Court stated that restrictions on that class could be explained only by hostility to an unpopular group,” he writes. “The possibility of a moral objection was not considered: The people … must be reined in, enlightened and civilized by the justices.”

Set aside, for a moment, predictions of how Roberts will vote on this-or-that issue. It’s unreliable, for starters. How can a sentence in a 20-year-old memo predict how a judge will rule five years from now? What really matters is having judges who faithfully uphold the text of the Constitution -- the actual text.

John Roberts is just such a judge. No wonder the left is mad.