[Mb-civic] Answer the questions - Jeff Jacoby - Boston Globe

[William Swiggard]

Answer the questions

By Jeff Jacoby, Globe Columnist  |  September 18, 2005

IT WAS Day Three of the John Roberts confirmation hearings, and Senator 
Joseph Biden, frustrated at his inability to draw out the Supreme Court 
nominee on a host of legal issues, was nearing the end of his allotted 
20 minutes.

''Look, it's kind of interesting, this Kabuki dance we have in these 
hearings here," he vented, ''as if the public doesn't have a right to 
know what you think about fundamental issues facing them. There's no . . 
. possibility that any one of us here would be elected to the United 
States Senate without expressing broadly and sometimes specifically to 
our public what it is we believe."

Surely, Biden continued, this wasn't what the Founders had intended. Had 
they said, ''Look, here's what we're going to do: We're going to require 
the two elected branches to answer questions of the public with no 
presumption they should have the job as senator, president, or 
congressman. But guess what? We're going to have a third co-equal branch 
of government that gets to be there for life. . . . And you know what? 
He doesn't have to tell us anything. It's OK, as long as he is' -- as 
you are -- 'a decent, bright, honorable man. That's all we need to know."

Roberts's answer was predictable. ''Judges don't stand for election," he 
primly told Biden. ''Judges go on the bench and they apply and decide 
cases according to the judicial process, not on the basis of promises 
made earlier to get elected or . . . to get confirmed." That's 
inconsistent with the independence and integrity of the Supreme Court.

Well, yes. Judicial nominees can't campaign for confirmation by 
guaranteeing outcomes in specific cases. In that sense, of course 
Roberts was right. But was Biden wrong? After all, our democratic 
republic is founded on the principle that those who govern must be 
accountable to the governed. Where is that accountability when it comes 
to the Supreme Court?

As chief justice, Roberts is likely to have more of an impact on 
American law and life than any of the senators voting on his nomination. 
>From the power of presidents to hold terror suspects indefinitely to the 
power of Congress to override state law, from the execution of murderers 
to the recognition of same-sex marriage, from affirmative action to 
abortion, Roberts and his fellow justices will shape national policy for 
years to come. Their decisions will be binding not only on the litigants 
before them, but also, by longstanding tradition, on the other branches 
of government. There is no appeal from a Supreme Court ruling. When the 
court strikes down federal and state laws, federal and state lawmakers 
must accept its decisions.

There is little in the Constitution to check and balance such immense 
authority. All that can keep the court answerable in some way to the 
electorate is the fact that the political branches give them their jobs 
-- the president appoints federal judges; the Senate confirms them.

That modest leverage is all we've got to remind the justices that they 
are public servants who must answer, however indirectly, to the people, 
not philosopher-kings to whom the people must bow. But if nominees are 
permitted to keep their views to themselves, how can the people decide 
whether they want them on the bench? For all the recent talk about the 
importance of judicial ''modesty," Supreme Court justices have been 
anything but modest in imposing their views on society. Shouldn't we 
know what those views are before investing them with such power?

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/09/18/answer_the_questions/
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