A Lady's Ruminations

"Jane was firm where she felt herself to be right." -Jane Austen, Pride and Prejudice


Thursday, September 15, 2005

"The oath is to uphold the Constitution and laws of the United States."

I was listening to Rush this morning and he pointed out this exchange that took place between Dick Durbin and Judge John Roberts during the hearings today. I found the transcript at CNN.com.

It is Rush's contention that John Roberts' answer to Durbin's question basically obliterates the usual liberal belief about the judiciary.

Here is the exchange:

SEN. RICHARD DURBIN (D), ILLINOIS: Well, if I might say, Judge, if you've made one point many times over during the course of the last three days, it's that as a judge you will be loyal and faithful to the process of law, to the rule of law.

I think that is without question from what you've said. I accept that on its face.

But the questions which we continue to ask you really try to go beyond that. Because I said at the outset that I thought one of the real measures as to whether or not you should be on the Supreme Court goes back to a point Senator Simon had made: Would you restrict freedom in America or would you expand it?

DURBIN: When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. That, to me, is a positive thing. That's my personal philosophy and point of view.

But then when you say, "If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too," I wonder, where are you?

Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, "I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief"?

That's what I've been asking.

ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy?"

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.

The oath that a judge takes is not that, "I'll look out for particular interests, I'll be on the side of particular interests." The oath is to uphold the Constitution and laws of the United States. And that's what I would do.


DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?

ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: "Equal justice under law." And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important. You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side.

The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution.

And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand.

ROBERTS: Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief.

But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.


DURBIN: Judge Roberts, thank you very much.
Roberts gave excellent answers. The law should see all parties in a suit as equals, regardless. The case should be judged based on the dictates of the Constitution and the laws of the United States, not on other circumstances.

Judge Roberts appointment to the Supreme Court will be huge.