Thomas Sowell

Preliminary indications are that both we and Judge John G. Roberts may be spared the ugly food fights that confirmation hearings before the Senate Judiciary Committee can become. However, if Judge Roberts has ever been guilty of jaywalking, you can believe that some shrill special interest group will dig that up and try to make him seem like a threat to the republic.

 Even if all goes well and Judge Roberts is confirmed, there are virtually certain to be liberal Senators trying to get his "views" on all sorts of issues and probably demanding confidential government documents that nobody is entitled to get, in order to dig deeper into his "views."

 What makes all this a cheap farce is that the very Senators who demand to see confidential memoranda from John Roberts' days in the Justice Department know in advance that no administration of either party is likely to release such confidential material -- not if they ever expect people to speak candidly in the future when their advice is sought.

 How important are a judge's views? The great Supreme Court Justice Oliver Wendell Holmes did not hesitate to express his views. In the case of Abrams v. United States, Holmes referred to the beliefs of the people on one side as "a creed which I believe to be the creed of ignorance and immaturity."

 But that was the side he voted for. He understood the difference between his views and the law of the land. Too many other judges, too many politicians, and too many in the media, do not.

 Justice Clarence Thomas has likewise expressed views contrary to the views of the side he voted for, both on the Circuit Court of Appeals and on the Supreme Court. He too understands that he is not there to impose whatever policy he prefers but, in Holmes' words, "to see that the game is played according to the rules whether I like them or not."

 It is a disservice to the country to promote the idea that a judge's "views" on particular policies are what matter.

 The idea that conservative judges will vote for conservative policies and liberal judges for liberal policies is the antithesis of what a judge is supposed to do. While some judges in fact vote largely on the basis of their own ideology or policy preferences, that is neither what they are supposed to do nor what all judges have done.

 Justice Holmes became a hero to many liberals because his judicial votes on the Court were in several landmark cases in favor of many of the policies and practices that liberals believe in. But this was not necessarily because these were what Justice Holmes believed in. He was at least as conservative as anyone on the Supreme Court today.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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