Political chasm on judges

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In recent months, a remarkable series of state supreme court decisions on same-sex "marriage" has heightened attention on the role of judges in America's democracy. Without exception, these decisions affirmed the centrality of elected representatives -- and the people -- in deciding difficult policy and morality questions. Indeed, looking exclusively at state courts, it would seem a wave of judicial modesty and restraint is sweeping America from New York to Georgia to Washington state to Nebraska.

Yet, while proponents of judicial modesty and restraint are notching historic victories in the states, the picture is less rosy at the federal level. That's because the confirmation process for federal judges has been polluted -- and threatens to be irreparably damaged. The latest Supreme Court confirmation debates exposed once again the chasm between the two political parties over the proper role in this democracy for unelected, life-tenured federal judges.

The court's two newest members, Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr., were widely considered two of the best-qualified Supreme Court nominees in U.S. history. Urging the confirmation of these distinguished public servants, Republicans correctly cited the high praise of both men that came from nearly every corner of the legal community.

But, as became clear, a judicial nominee's qualifications -- no matter how stellar -- are largely irrelevant to the hard left and their Democrat allies in the Senate. Justices Roberts' and Alito's opponents did not attempt to conceal their belief that judges should be results-oriented -- particularly when deciding cases implicating the left's social agenda.

The left conditions its approval on a nominee embracing that agenda -- which history shows can only be imposed through the federal courts as it is consistently rejected at the ballot box. The obvious consequence to the judicial confirmation process is that nominees must arrive with a policy platform in tow and be prepared to declare their views on a host of issues likely to come before the courts.

Those who cynically view judges as nothing more than politicians in robes pose a grave threat to American democracy. In a recent column in The Washington Post, Sen. Edward M. Kennedy, Massachusetts Democrat, restated the left's objections to Justices Roberts and Alito -- criticizing several of their votes, and concluding both men are "extremists" with an "agenda" -- "partisans ready and willing to tilt the court away from the mainstream."

Mr. Kennedy sounds a note all-too-familiar to those of us who closely followed those confirmation fights: A nominee's opponents declare "out of the mainstream" any and all votes that threaten liberal orthodoxy, irrespective of the soundness of the legal reasoning. And a single point of disagreement with a liberal position renders the nominee forever "hostile" to that cause -- again, regardless of the quality of legal reasoning or how many data points contradict the charge.

For the hard left, results are enough to "plainly" demonstrate the "activist's embrace of the [Bush] administration's political and ideological agenda." But the only thing plainly demonstrated is their penchant for cherry-picking cases.

Chief Justice Roberts and Justice Alito are criticized for intruding upon state political autonomy in one case (Oregon v. Gonzales) and for safeguarding it in another (LULAC v. Perry); for ignoring executive expertise in one case (Rapanos), and for deferring to it in another (Hamdan v. Rumsfeld); and for adhering to venerable precedent in one case (Hamdan, again), and overruling it in another (Hudson v. Michigan). The only discernible thread shared by each criticized vote is the left's disagreement with the result reached by Chief Justice Roberts or Justice Alito. Conspicuously absent from Mr. Kennedy's 1,500-word missive is a single sentence analytically critiquing either justice's legal reasoning.

On selecting judges, I agree wholeheartedly with this president: men and women seeking to enact their own policy preferences need not apply.

Members of the hard left vigorously opposed John Roberts and Samuel Alito precisely because they knew from the ample record that neither of these distinguished public servants would stooge for any radical agenda, left or right.

Finally, I cannot leave unanswered the recent reckless charge by Mr. Kennedy that Chief Justice Roberts' and Justice Alito's confirmation hearings were a "sham" and that the nominees were permitted to "mislead" the Senate. That would certainly be news to Sen. Arlen Specter, who chairs the Judiciary Committee and oversaw both nominees' confirmation hearings. Indeed, Mr. Specter has time and again proven that he is second to no one in providing fair process, as evidenced by the bipartisan accolades he received for his stewardship of both sets of hearings.

In fact, at the Roberts and Alito hearings, Mr. Specter -- in a nod to bipartisanship and fairness -- broke with tradition and allowed the minority party Democrats the same number of witnesses (15) as Republicans.

To call the process a sham is to ignore the 3,000-plus pages of record produced during the two confirmation hearings. For his part, Justice Alito was asked and answered more than 700 questions over 18 hours of before the committee -- more than double the number of questions answered by Justice Ruth Bader Ginsburg.

The bottom line: Chief Justice Roberts and Associate Justice Alito were poked and prodded more than any judicial nominees in the history of the republic. There was ample time and opportunity to probe the nominees and legal experts eager to make their contribution to the record.

The left doesn't want questions answered, it wants promises made. It wants judicial nominees to pledge fealty to the left's extreme ideological agenda. Nothing less will suffice. Until a leading voice on the left stands up to this misguided judicial philosophy, the federal judiciary will continue down the dangerous road toward politicization.

John Cornyn, Texas Republican, is a member of the U.S. Senate's Judiciary Committee.