Moral rectitude and political maneuvering
The vicious outcry against the judges who upheld Michael Schiavo's custody of his wife, raised by public figures like James Dobson, made it clear that this branch of government, too, has been drawn into the discourse of vilification. What we are supposed to expect from these arbiters of American justice seems less clear all the time. What counts as established jurisprudence that cannot be turned back, or is there any such thing? Should we expect a judge to contravene the law when a matter of personal principle, religiously based or otherwise, conflicts? How much should a judge's personal views matter, and how do we know where a judge draws that line when interpreting the law? Even a judicial robot could not render decisions without some kind of bias, following the dictum that machines are only as smart as the people who program them. And yet John Roberts has allegedly made comments to the effect that, given his Catholic faith, he would voluntarily recuse himself from any decisions involving abortion. While that statement has been disputed (although I don't think by Roberts himself), the very idea that someone's private creed would prevent him or her from carrying out a public charge, and selectively, is troubling. I can't see how a judge could possibly function that way. That sounds like a politician talking, angling to please.
Judges, at least at the federal level, are not supposed to be politicians. That's why we don't elect them directly. They inhabit a branch of government that, while its members are vetted by the politician branches, was intentionally designed to be separate, and non-majoritarian--like the Senate that was granted the responsibility of advice and consent on them. In fact, the charge of a federal judge is all the more crucial because he or she may be asked to check the excesses of the politician branches--which, inevitably, gives those branches a vested interest in who gets to occupy those positions. And then we're back to square one: do politicians want to govern the country responsibly, or is their moral rectitude to be a notch below those who would use the asymmetrical power relation they enjoy to achieve selfish ends, regardless of the damage done to those whom they should be protecting?
I am troubled by the political maneuvering surrounding the Roberts nomination. Citizens of a democracy, including the representatives elected from amongst them into the federal government, should not have to guess about a nominee to such a sensitive position of responsibility as the Supreme Court. We may not all like what there is to hear about a nominee, but all of this "is he or isn't he" back-and-forth on any number of issues is not healthy for our confirmation process--in fact, the guessing game, with each round of headline-grabbing disclosures, tinged by the salaciousness of gossip, seems too often to become a substitute for the sober evaluation of what a nominee would mean for the direction of the country. Roberts' writings on issues like civil rights, whether produced for an employer or not, are indicative of his own thought processes--any objection to the contrary seems ot me disingenuous. The calculating stranglehold that the Bush administration is exercising over documents authored by or pertaining to Roberts during his tenure as Deputy Solicitor General under Bush 41 is only encouraging this game. Even if there is nothing in those documents that will tell us anything we don't already (supposedly) know, the impression that such an obstruction creates is that they will. And if there is really nothing there, then what's the point in the obstruction? Just to say "nyah nyah, you can't make me"?
Just as some people see the release of such documents as a matter of executive privilege, some people I have spoken to are of the opinion that if a president has the fortune to fill a slot on the Supreme Court on his watch, then he gets to pick whomever he pleases, and he shouldn't be given a hard time by those losers who happen to be in the minority at the time. Even if you subscribe to that basic idea, the moral rectitude of the politician who happens to be president should be part of that consideration, too. To begin with, the whole discourse of "winners" and "losers" is ugly and misplaced in governance--which should be a cooperative project, unlike politics, which is related but different--but moreover, it's difficult to learn about the behavior and policies of this particular administration without experiencing the sinking feeling that, as a nation, we've been had, from the war and occupation in Iraq to deceptively-named environmental policies to the drive to reform Social Security. That's why the Senate's advice and consent role is so important to preserving a government that is truly of, for, and by the people--because while one man is in a position to do terrible damage to our nation as a whole, one hundred people are given the crucial task of ensuring that this does not happen. The confirmation of John Roberts may or may not represent that damage in and of itself, but the manner in which this process is being played out by politicians and pundits is already representative of some of the worst tendencies of the system.
To close with a thought from another observer of human nature and purveyor of popular entertainment, P.T. Barnum, you can fool some people some time, but you can't fool all the people all the time. I don't want to go on feeling like the leaders of this country are playing some kind of shell game with the branch of government that is charged with vetting the legal reality in which we all live--for that is what the struggle is over, what will constitute the official reality of the United States. And so I hope that there are Senators--including amongst the "winners"--who have the moral rectitude to keep their eyes on the task to which they have been elected: to make sure that the phrase "with liberty and justice for all" continues to be true, rather than to be complicit in the degradation of the institutions that make this nation great.