Should Republicans go ahead and add Supreme Court Justices to head off Democrats

Lessons in the rule of law for Dems on committee

Terry Eastland:

ON THE FINAL DAY OF the Roberts hearings, Sen. Richard J. Durbin of Illinois tried one last time: "If you've made one point many times over . . . the course of the last three days," he told the judge, "it is that as a judge you will be loyal and faithful to the process of law, to the rule of law." But "beyond loyalty to the process of law," he asked Roberts, "how do you view [the] law when it comes to expanding our personal freedom? . . . That's what I've been asking."

And so, in various ways, had Durbin's Democratic colleagues been asking about such matters--ones "beyond loyalty" to the rule of law. In response to Durbin, Roberts stuck to the point he had indeed made "many times over." Reframing the senator's question so as to reach the core issue, Roberts said, "Somebody asked me, you know, 'Are you going to be on the side of the little guy?' And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that 'I'll look out for particular interests.' . . . The oath is to uphold the Constitutions and laws of the United States, and this is what I would do."

That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result. Roberts will go not with the little guy because he is the little guy, or the big guy because he is the big guy, but with the guy the Constitution says should win. He'll not look out for "particular interests" because his oath obligates him to support not this or that interest but the Constitution and the laws of the United States.

The Democrats are looking for judges who will be advocates for certain positions and write a brief supporting that position rather than an opinion on what the Constitution and law says the result should be.