Saturday, September 17, 2005

Dionne Lacks Understanding

In today's Washington Post, E.J. Dionne Jr. (who I almost never agree with) misses the mark again. He compains bitterly that Roberts is likely to be confirmed. He claims that Democrats and Republicans alike should vote 'no'. Of course, this is not because Roberts is unqualified or because he's going to decide cases on something other than the facts before him, the precedent behind him, and the rule of law. No, Dionne thinks that senators should vote no, because these are the things Roberts has said he will do and because Roberts has refused to sit in judgment of cases that he has not heard.

It's difficult for me to see why this might be a disqualify factor. Theoretically, aren't judges supposed to be impartial? decide cases on their merits? not reach a decision before all the evidence is in? Isn't that what we instruct juries to do everyday in courts across the country? Roberts did no more or no less than at least the last several Court nominees. He refused to answer questions that required him to commit to a decision before having heard the facts of a specific case.

As Erik Jaffe noted, the role of the judiciary is not to provide any policy solutions that people might want. It is to provide the policy positions that the Constitution and statutes provide. If they are not the ones you want, you work to change the statutes and or the Constitution. Short of that, the court provides no other remedies. Many of the senators seem to think that the Court should subscribe to the policy views that they do. That is just a misunderstanding of the role of the courts.