International House of Dan: Does Judge Roberts Have a Soul?

Friday, September 16, 2005

Does Judge Roberts Have a Soul?

Yesterday I called the offices of Senators Obama and Durbin to ask that they vigorously oppose the confirmation of Judge John G. Roberts. I'd been meaning to call but what finally pushed it off my to-do list was thinking about the answers he'd given the previous night when questioned by Sen. Durbin. This portion of the transcript (about 1/4 of the way down) cemented the impression of Roberts that had been forming in my head over the time since his nomination, first to Justice O'Connor's seat, and then to become Chief Justice of the United States: I'm not convinced that the man has a soul.

I knew I would relate to Sen. Durbin's questions when he remarked to the Judge: "I remember law students with your talents when I was in law school. I had to get to know them in the first year, because they were then off to the law review and I was off to buy another Gilbert's outline. I didn't see them again." Too true... In any event, a troubling pattern soon became clear in Judge Roberts's answers. When asked about if he could see "the people behind the precedents? The families behind the footnotes?" Judge Roberts responded as follows:

It's hard for me to imagine what their case is about, that I haven't been on their side at some point in my career. If it's somebody who's representing welfare recipients who have had their benefits cut off, I've done that. If it's somebody who is representing a criminal defendant who's facing a long sentence in prison, I've done that. If it's a prosecutor who's doing his job to defend society's interest against criminals, I've been on the side of the prosecution. If it's somebody who's representing environmental interests, environmentalists in the Supreme Court, I've done that. If it's somebody who is representing the plaintiffs in an anti- trust case, I've been in that person's shoes. I've done that. If it's somebody representing a defendant in any trust [sic] case, I've done that as well.
It seemed like a good answer at the time, and Sen. Durbin seemed to think so too, but as the questioning progressed it began to dawn on me that the Judge does not relate to the people behind the cases: he relates to their lawyers. He doesn't relate to what's right, just what's legal.

Sen. Durbin asked Judge Roberts if he thought he'd been on the right side of the law in a case where he argued an HMO's claimed exemption from an Illinois law designed to extend health care to the uninsured, and when he wrote a memo criticizing the U.S. Solicitor General for not intervening in defense of a Texas law eliminating undocumented children's access to education. Judge Roberts in both instances continued to beat the tired horse of duty: he does not appear to think or care about what's right or wrong on a grand moral scale, he will do his job as a lawyer and apply the law as he finds it.

Here's where I decide he has no soul. There are many reasons why a nominee would give a an answer that makes him seem like a robot: he could've been poorly prepped (not the case here), he could be stupid (not the case here), he could be nervous (not the case here), or he might just be either evil or telling the truth. Judge Roberts seems unlikely to be moved by the plight of the weak and voiceless, and I don't think it's because he's evil, I think it's that he sincerely can't see past the books. As an attorney, I understand that a client should be advocated for with zeal, regardless of personal feelings, but as a human being I know that just because personal feelings can't interfere with representation doesn't mean that they cease to exist. "Yes Senator, of course I don't wish to hurt poor uninsured Americans or immigrant children trying to learn to read, but I was required by my oath to fight for my client with zeal, to brush my feelings aside and do everything within the law to articulate my client's position." That was something like the answer I think Senator Durbin (and I) had hoped for. We got everything that came after "but", everything except the part we wanted to hear. I don't think Judge Roberts should be stopped because he's evil, I think he should be stopped because he fails to show compassion.

Considering the rest of the hearings, this attempt (conscious or not) to isolate his judgment from the parties before him seems inconsistent with his repeated refusal to give his opinion on the grounds that the facts of each case may require a different decision. On it's face, I don't think Article III necessarily supports the notion that decisions must be wholly divorced from the people they affect. The sterile application of law without regard for the parties in a case might even tend to moot the distinction, for example, between de facto and de jure discrimination. Furthermore, if our judiciary is meant to interpret the law without an eye toward people, then why ban advisory opinions?

If we can divine any universal truths from The Simpsons (which we can), then I suspect that the automatic sliding doors at the store do not open for Judge Roberts. But then again, I have a hard time imagining that the man shops anywhere with automatic sliding doors. Maybe lacking a soul messes him up at airport entrances...

In any event, if you're still reading this, sorry it got so long and rambly, but if you live in Illinois, click on your Senators' names at the start of this post and tell them to oppose this nominee. If you live outside Illinois, find your Senators here. Tell them you don't wish to see our highest court stripped of the compassion and humanity that have allowed its members to escape the heavy yoke of stare decisis and oppressive legislation and put a human face on the issue before them, as they did when they saw Plessy for what it was and brought us closer to what we should be.

Maybe he's putting on an act for the right and will turn out to be a great reformer, but it seems unlikely, and I don't feel comfortable pegging the next few decades of case law to an optimistic "maybe."


Anonymous Anonymous said...

Soul is overrated. I agree with you and Durbin. But there is still enough uncertainty about him that it could still trun out to be a good appointment. As far as compromise is concerned the Dems should probably just take this one on the chin so they can really come out if they need to against the next appointment.

Jeremy Swenson

24 September, 2005 10:27  

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