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Ordeal by Ideology: The Grilling of Judge Roberts
| James Hitchcock
As expected, John G. Roberts Jr., President Bushs nominee to the Supreme
Court, has been thoroughly grilled by the Senate and has emerged from the
ordeal having revealed very little about his judicial philosophy, even in
effect denying that he has one.
His comparing of himself to an umpire, while perhaps a clever strategy,
is not apt. Lower-court judges often function like umpires, in that the
principal task of lower courts is usually to determine facts. But at the
higher judicial levels the task is to interpret laws, ultimately the Constitution
itself, so that a Supreme Court justice is like an umpire called upon to
enforce a rule book that only says things like, "Unsportsmanlike conduct
Based on his overall record, Judge Robert is thought to be "conservative"
on the two issues that most trouble many religious believers abortion
and the role of religion in public life and he was put through the
wringer (as almost all nominees for high office now are) mainly by Senators
who fear that he is exactly that.
There is now much talk about people who allegedly want to establish a "theocracy"
and to "impose their own beliefs on others," warnings that have
predictably been issued concerning Judge Roberts. But most of this fevered
rhetoric is merely code language for abortion, on the part of people who
are perhaps reluctant to make such a sordid thing the centerpiece of their
agenda and who scramble for the high moral ground.
Judge Roberts has of course acknowledged that Roe v. Wade, the Supreme Court
decision that made abortion legal, is "the law of the land," but
that admission does not necessarily mean that he thinks it could never be
overturned, as many Supreme Court decisions have been. Thus many of the
questions put to him turned on the issue of precedent would he "respect"
previous court decisions?
The questions implied that every Court decision really is set in concrete
and should never be questioned, but literally no one believes that, which
shows how hypocritical many of his questioners are. Every aware person,
no matter where they are on the political spectrum, can think of a lot of
Supreme Court decisions they hope are reversed.
It is especially ironic that those who regard Roe v. Wade as a sacred text
are liberals, meaning people who urge us to keep the country moving, constantly
changing laws and other things to meet "new needs," but who are
now desperate to protect the status quo on abortion, adopting a stance towards
judicial precedents that would have made it impossible to find racial segregation
unconstitutional, for example, since earlier precedents had gone the opposite
Thus the process of confirming judges has become the ordeal it now is. We
are reminded that in the past the Senate often rejected presidential nominees.
But most of those rejections were of people deemed to be unqualified for
the office, or who in some cases had made the wrong political enemies. Never
before has raw ideology the demand that nominees promise in advance
not to go against certain precedents - been the criterion it now is.
Roe v. Wade, along with a series of church-state cases beginning in 1947,
was itself a radical departure from what went before. Over the past sixty
years the Court has made a revolution, and those who supported that revolution
now want to insure that no one can undo its achievements. If in the late
1930s certain nominees to the Court Hugo Black, William O.
Douglas, Felix Frankfurter had been asked how they might rule on
such questions as prayer in the public schools, and if they had answered
candidly, they would not have been confirmed and the judicial revolution
would probably never have occurred.
The same would have happened if, during the 1950s and 1960s,
William Brennan, Harry Blackmun, and others had been asked about abortion.
But in those days that was not the way it was done. Black, notably, was
not seriously questioned about his attitude towards the Catholic Church,
even though his membership in the Ku Klux Klan indicated that he was anti-Catholic,
as his career on the Court confirmed that he indeed was.
The lead in grilling Judge Roberts has been taken by Senator Richard Durbin
of Illinois, who is a Catholic but who makes it clear that he thinks the
protection of abortion "rights" is a major concern. Like other
Catholics in public office, Senator Durbin insists that he is "personally
opposed" but believes that as a public official he must protect a constitutional
right. But if his claim is taken at face value, Senator Durbin and others
like him are being offered a wonderful opportunity to reconcile their beliefs
with their public duties. If changes on the Supreme Court lead to a situation
in which abortion is no longer thought to be guaranteed in the Constitution,
then it will cease to be a right and no public official need be worried
about letting his religion interfere with his duty.
But instead, Senator Durbin and some other Catholics now lead the charge
against a nominee they fear might help to resolve their dilemma. Isnt
it about time that such people stop claiming even to be "personally
[This article originally appeared on the
Women for Faith & Family website on September 18, 2005.]
Other IgnatiusInsight.com columns and articles by Dr. Hitchcock:
The Supreme Court's Penumbra of Politics
Ratzinger: Man for the Job
Modern Culture; Asserting the Gospel
Bishops, Liberal Results
The Myth of the Wall of Separation
The Church and
Theory of the
Dr. James Hitchcock, (e-mail)
professor of history at St. Louis University, writes and lectures on contemporary
Church matters. His column appears in the diocesan press. He is the author
of several books, including The Recovery of the Sacred, What is Secular
Humanism?, and Years of Crisis: Collected Essays, 1970-1983.
Princeton University Press just published his two-volume history of the
Supreme Court, The Supreme Court and Religion in American Life:
The Odyssey of the Religion Clauses (Vol. 1) and
From "Higher Law" to "Sectarian Scruples"
(Vol. 2). He is also a regular contributor to many Catholic periodicals,
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