Topic: What is Your Job or Role as a Judge
Senator: Hatch
Date: SEPTEMBER 13, 2005
Contents
HATCH: Now, the chairman and ranking member have raised some important issues, and I may turn to some of them shortly. But I believe, however, that we should start with first principles before exploring how those principles should be applied.
Many activist groups, and some of my Senate colleagues, would like nothing more than that you take a series of litmus tests, that you reveal your positions on issues and tell us where you stand.
I've been on this committee during the hearings on nine Supreme Court nominations. I voted to confirm all of the nominees, Democrats and Republicans.
As I described yesterday, I agree that this committee needs answers, but only to proper questions.
The important question is not what your views are on any particular issue. You are not campaigning for elective office. The question that needs to be answered is how you view the role of unelected judges in a representative democracy.
And I know you've said you do not have what might be described as a carefully calibrated, highly defined judicial philosophy, but as each individual case comes before you with its own unique facts and issues -- yesterday you gave us your commitment that you will approach that case within a certain framework.
Now, I am more interested in learning more about that framework, that perspective on what you believe your job as a judge really is, than I am in how you specifically implement that framework in specific cases or individual cases.
Now, this is where I do differ with some of my colleagues. I want to know more about how you get -- or how you intend to get -- to a conclusion, while some appear to only want to know what the conclusion will be, like on issues such as abortion.
Some think that judges exist to defend and promote progress, preserving the gains of the past and bringing us to a better future of equality and justice. Now, that does not sound -- to use a word you have used to describe judges -- very modest to me.
On the other hand, Senator DeWine noted Justice Byron White, appointed by President Kennedy, said that judges decide cases; and I thought that was an important quote yesterday.
HATCH: Yesterday you used the analogy of an umpire who calls balls and strikes but neither pitches or bets. Please help the committee sort this out by describing further the role you believe unelected judges play or should play in our system of government.
Are they charged, for example, with using the Constitution affect cultural and political reform, or does the Constitution require that this should be left to the people and their elected representatives?
How can the judiciary sit in constitutional judgment over the legislative and executive branches while still remaining co-equal with them?
If you could kind of take a crack at those various questions, I'd appreciate it.
ROBERTS: Well, Justice White's insight that was quoted by Senator DeWine yesterday, that judges' obligation is to decide cases, really has constitutional significance.
It goes back to Marbury vs. Madison. You know, the Constitution doesn't have any provision that says, when the judges, but the way are to interpret the Constitution and tell us what it means. What it says is that they judges are to decide cases that arise under this Constitution -- this new Constitution -- and under and new laws that the Congress might pass.
And what Chief Justice Marshall explained in Marbury vs. Madison was that, well, if we've got to decide cases, that's our constitutional obligation. We've got to decide whether, in a particular case, something's consistent with the Constitution or not.
So, we have to decide what the Constitution means. And that's what the framers intended.
So, the obligation to decide cases is the only basis for the authority to interpret the Constitution and laws. That means that judges should be careful in making sure that they have a real case in front of them, a real live dispute between parties who have actual injury involved, actual interests at stake because that is the basis for their legitimacy.
And then they're to decide that case as a judge would, not as a legislator would based on any view of what's the best policy but as a judge would based on the law.
ROBERTS: That's why the framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.
The people who framed our Constitution were jealous of their freedom and liberty. They would not have sat around and said, "Let's take all the hard issues and give them over to the judges." That would have been the furthest thing from their mind.
Now, judges have to decide hard questions when they come up in the context of a particular case. That's their obligation. But they have to decide those questions according to the rule of law -- not their own social preferences, not their policy views, not their personal preferences -- according to the rule of law.
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