- The Washington Times - Tuesday, September 13, 2005

In two days of confirmation hearings for his nomination as chief justice of the United States, Judge John G. Roberts has outshone his critics with succinct and memorable statements of judicial philosophy. These statements will outlast whatever comes from his interlocutors on the Senate Judiciary Committee.

While the first Supreme Court nomination hearings in 11 years give only hints of what the court would be like under Judge Roberts, they certainly shed more light than whatever can be divined from two-decade-old Justice Department memos a young John Roberts authored a few years out of Harvard Law School. These initial indications are encouraging.

Most memorably, Judge Roberts used a baseball analogy to argue that the judiciary doesn’t make the rules, it applies them, and should call the plays like it sees them. “Judges are like umpires,” he said in his opening statement Monday. “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” That’s the right standard, and it has become the touchstone for senators’ questioning. If Judge Roberts is confirmed — which at this point seems all but certain — conservatives and liberals alike will compare his opinions to the standard of a humble, limited judiciary he outlined on the first day of his hearings. And the “umpire” analogy is one that seems likely to be repeated and discussed in law classes for decades.

Second, though he appears to have been misinterpreted by the New York Times and others seeking to divine his substantive views on abortion, Judge Roberts has resisted attempts by Democratic senators and by Sen. Arlen Specter, Pennsylvania Republican, to find back doors to talk about abortion, Roe v. Wade and other issues likely to come before the court. On the abortion issue, Judge Roberts emphasized the importance of stare decisis as a judicial principle upholding the integrity of the law and preventing the social disorder that legal flip-flopping would create. But he did not issue any promises that stare decisis guarantees that Roe v. Wade will not be overturned.

Meanwhile the barbs flew, primarily from Senate Democrats seeking to appear thunderous before the camera, but also from Mr. Specter, who asked Judge Roberts whether his Catholic faith would influence his rulings. Earlier, Sen. Ted Kennedy, Massachusetts Democrat, threw an ugly barb by calling Judge Roberts’ writings “mean-spirited.”

If, as it seems likely, Judge Roberts is confirmed as chief justice of the Supreme Court, on the basis of these first two days of confirmation hearings, conservatives will have a bold statement of the limited, constitutionalist judiciary John Roberts pledges to uphold.

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