Nomination of John Roberts to the Supreme Court

Senator Sam Brownback

690 words

On July 19, President Bush nominated Judge John Roberts to serve as an
Associate Justice on the U.S. Supreme Court. By all accounts, Judge
Roberts has excellent legal credentials: he graduated magna cum laude
from Harvard Law School, he clerked for then-Associate Justice
Rehnquist, he served as Principal Deputy Solicitor General at the
Department of Justice, he amassed a strong record as a Supreme Court
advocate in private practice, and he has distinguished himself as a
judge on the D.C. Circuit Court of Appeals. His record reveals a lawyer
at the top of his profession.

I was particularly struck by Judge Roberts' statement the evening he was
nominated at the White House that he had a "profound appreciation for
the role of the Court in our constitutional democracy." The role of the
Court in American government and life is of great concern to me as well.

It is my hope that Judge Roberts -- indeed, any nominee to the Supreme
Court -- would be faithful to the role originally intended for the
courts by the Framers of the Constitution.

In my view, democracy loses its luster when Justices on the high Court
-- who are unelected and, effectively, unaccountable -- invent
constitutional rights and alter the balance of governmental powers in
ways that find no support in the text, structure, or history of the
Constitution. Unfortunately, the Court in recent years has aggressively,
and in my view improperly, assumed a more prominent political role.

In our system of government, the Constitution contemplates that federal
courts will exercise limited jurisdiction: they should neither write nor
execute the laws, but simply "say what the law is," as former Chief
Justice Marshall stated in the famous 1803 case of *Marbury v. Madison*.

As Alexander Hamilton explained, this limitation on judicial power is
what would make the federal judiciary the "least dangerous branch." He
assured his fellow Framers that judges could be trusted with power
because they would not resolve divisive social issues, short-circuit the
political process, or invent rights that had no basis in the text of the
Constitution.

Unfortunately, the courts in recent years have strayed far beyond the
limited role envisioned by the Constitution. The Framers surely would be
shocked at the broad sweep of judicial power in America today: federal
courts today are redefining the meaning of marriage, deciding when life
begins and when it may end, running prisons and schools by decree,
enhancing federal power at the expense of the states, and interpreting
the American Constitution on the basis of foreign and international law.

In many cases, the courts have allowed politically-motivated litigators
to achieve through constitutional mandates what they cannot persuade the
People to enact through the legislative process.

The expanded role assumed by the Supreme Court and federal courts
generally in recent years makes it all the more important that Judge
Roberts exhibit proper respect for the restrained role of the federal
courts in American government. I hope the confirmation process
demonstrates that he will live up to the President's stated ideal of
nominating individuals who will refrain from making law on the bench.

I also hope that my colleagues will resist the demands from liberal
interest groups urging knee-jerk opposition to Judge Roberts'
nomination. Senators should live up to the tradition of careful,
considered debate which is the heritage of our great institution. Our
deliberation on this nomination should be respectful, and it should
focus on substance.

It would be a tragedy for the Senate and for the Republic if the
confirmation process for Judge Roberts reflects the treatment some of
President Bush's nominees to this point, including Roberts himself when
he was a circuit court nominee, have received. Judge Roberts' pleasant
demeanor should be matched by civil treatment in the Judiciary Committee
and on the Senate floor.

Finally, neither filibusters nor supermajority requirements have any
place in the confirmation process. Those tactics of obstruction should
become the historical relics they deserve to be. The country deserves,
and the Constitution demands, a prompt, thorough debate and a fair
up-or-down vote on Judge Roberts' nomination to the Supreme Court, and I
look forward to being an active participant in that process.