Monday , February 19 2018
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My hope is that he continues to be a mystery and not become predictable

Mr. Roberts Goes To Washington

Ever since I read Hunter S. Thompson’s Fear and Loathing on the Campaign Trail, I have had a fascination with American politics. It fluctuates between the rubbernecking of a bystander at a train wreck to appreciation for the genuine intelligence of some of the participants.

There was a time back in the late 1980s when I was regularly watching the McNeil-Lehrer News Hour on PBS. Listening to and watching Senators discussing issues was a revelation. Compared to so many of the half-wits who represent constituents in Canada, most of these guys were brilliant. What was really driven home to me was that in the United States you have people who are professional politicians, while in Canada the majority in our House of Commons have little or no understanding of the nature of government.

I suppose one could argue back and forth about which is better: having professional politicians lends to having a system of elites running the government instead of having people spend their first term in office simply learning where all the bathrooms are, let alone doing anything constructive. But there can be no doubt that your politicians, from what I saw, were able to comprehend and deal with complex issues at a level exceeding all but our most senior members of parliament.

The only similarity that I could pick up on was that each of our systems is crippled by partisanship. Although, to be fair, I’ve seen more people cross party lines in your Senate than in our House of Commons. Members of Parliament, especially members of the governing party, are only ever allowed to “vote their conscience” with permission of their party leadership, or risk expulsion from the caucus.

I think this has more to do with our system of government. When a government can be overthrown if a motion goes down to defeat, party loyalty is more about power than philosophy.

Until recently Canada has not had the same system of “checks and balances” that the United States is so rightly famous for: the Judiciary, the Executive, and the Legislative branches of government keeping tabs on each other to ensure that the Constitution is adhered to. Even now it is not an official part of our system of government, but rather a product of circumstances.

Our barely-twenty-five-year-old Charter of Rights and Freedoms has allowed individuals or groups to challenge legislation passed by the House of Commons on Constitutional grounds. If the individual law can be shown to contravene a section of the Charter of Rights and Freedoms, it is overturned. The nine justices of the Supreme Court of Canada make any such decision; at least they have the final say in the matter.

Of course any time one group or another disagrees with the court’s findings there will be the outcry of, “who is running the country, the courts or the politicians?” It doesn’t seem to matter if last week their ruling favoured you; if this week they are against you, they have too much power. It has always seemed to me that they are making the wrong complaint. They should really be asking, “When will our politicians read the Constitution?”

Nobody used to really give a damn about who served on the Supreme Court of Canada, except lawyers and judges. Now that they actually have a function that directly affects special interest groups of all stripes, people have become more interested in how they are appointed.

This leads me to think that more Canadians than usual will be taking an interest in the nomination process that Judge John Roberts is undergoing in Washington these days. The editors of our major newspapers seem to think so too, given the amount of coverage the hearings are getting.

Aside from the fact that the confirmation of Judge Roberts as the next Chief Justice of the Supreme Court is a done deal if nothing earth-shattering happens by the end of the week (He’d have to be found with a needle in one arm and his other arm around a ten year old boy to lose the nomination now), very little of substance has come out of the hearings.

While the Republican members of the committee are endorsing his right to not comment on cases that could appear before the court during his tenure, the Democrats are fuming over his refusal to state his opinions on any number of issues they hold dear. One question that has popped into my mind, based on his answer to the question of Roe v. Wade, the decision that legalized abortion: from whom is he trying to hide his opinions?

Conservative Christians who form the backbone of George Bush’s support have long lobbied for the overturning of Roe v. Wade, and any law that allows for easy access to abortion. When questioned about that judgement, Judge Roberts answered that precedent had been set by that decision, and others, and precedent must weighs heavily in the resolution of issues.

Now unless that’s some kind of secret code that I don’t understand, that can’t sound very promising to those advocating for its reversal. Of course it doesn’t commit him to supporting it either. In fact all of his responses seem to fall into a middle ground that is almost foreign territory in politics these days.

He is coming across like the judge he is, reserving judgement on matters until he hears facts in a case. One has to hope that whatever a judge’s personal opinions or beliefs, when he or she gets behind the bench they are able to shelve them so as to deal with the matter at hand in as unbiased a manner as possible.

Of course one must keep in mind that Judge Roberts has probably been carefully schooled by Bush’s people on how to answer questions, and how to best appear “judicial” for the American public. It doesn’t hurt that the Republicans have the majority on the committee, and are able to lob him some easy pitches so that he has the ability to shine.

Compared to the last hearings I have any sort of recall about, the Bork and Thomas hearings in the eighties that were absolute chaos and three ring circuses, this has been a highly civilized affair. Of course the Democrats are picking at him: that’s their job. But even their questions and criticisms are sounding more routine and don’t have the usual vindictive quality so prevalent in the partisan world of politics these days.

As with certain parties in Canadian politics, the question of how much influence judges should have over governance has become important again. In the same article cited above, Republican Senator Orrin Hatch of Utah is quoted as saying:

“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.”

As this was not posed as a question to Judge Roberts, rather as a reason for not having him answer issue specific questions, he was not required to answer. But in comparing the role of a justice to an umpire at a baseball game who the fans don’t go to see, as he did during his testimony, he is implying that he falls somewhat into the “don’t interfere with the government” camp.

But before supporters of less judicial intervention break out the party hats they should think about another comment he made concerning the rights of privacy and the constitution. He said “I do think the right to privacy is protected under the Constitution in various ways,” which I would take to mean that he will apply the Constitution to rulings, implying that at some point he could very well prevent a piece of legislation that abuses that above-mentioned right to privacy.

On one hand he is appeasing the right because they have been complaining about the Court interfering in matters of governance, such as the Schiavo case, but at the same time he is telling moderates not to worry because he respects the Constitution. All of this is leaving everybody wondering who Judge John Roberts really is and what he stands for.

Though, like I said earlier about personal beliefs taking a back seat for a judge, one can also see this as an extension of the impartiality needed by a judge. Shouldn’t a judge be able to see all sides of an issue so they can decide on the merits of an individual case, not a credo? If in one instance a law is found to infringe upon the right of privacy and in another a different law doesn’t, wouldn’t you rather he formed different judgments on each case rather than apply a blanket result?

I would like to think that Judge Roberts is not supplying simplistic answers to any of these cases because are there aren’t any. It is possible that he’s not taking an easy route by giving people on either side the responses they are hoping for, because he knows that situations change from case to case.

Like I said before, this lacks the fire works of previous confirmation hearings, but it is still a fascinating process to watch. Though his nomination is pretty much assured, this is the American public’s first opportunity to watch the man who will be setting the legal course of their nation for the next twenty to thirty years.

There will probably be more questions than answers coming out of these hearings concerning how Judge Roberts will perform his duties as Chief Justice of the Supreme Court of the United States, and that in itself will make for great reading as people try to get a handle on the man over the next little while. My hope is that he continues to be a mystery and not become predictable. Then we will know he is dong his job well.

About Richard Marcus

Richard Marcus is the author of two books commissioned by Ulysses Press, "What Will Happen In Eragon IV?" (2009) and "The Unofficial Heroes Of Olympus Companion". Aside from Blogcritics his work has appeared around the world in publications like the German edition of Rolling Stone Magazine and the multilingual web site Qantara.de. He has been writing for Blogcritics.org since 2005 and has published around 1900 articles at the site.

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