Thursday, September 15, 2005


I've spent a fair bit of the past few days listening to the Senate hearings, whereby John Roberts will likely be confirmed as the next Chief Justice of the Supreme Court. For the most part, this has been a surprisingly civil discussion. This is even as liberals, concerned that a conservative judge (such as Roberts appears to be) will overturn rulings that have secured several important liberal freedoms, have pressed Roberts for details on how he is likely to rule. Details that Roberts has, mostly, been unwilling to provide (consistent with the stance held by most other Supreme Court nominees that have been so questioned).

I have been given a renewed opportunity to consider the matter of impartiality, as Roberts has contended, time and again, that he will be a Justice who rules according to the rule of law, and not according to his beliefs. This is a laudable goal. To the extent that Justice Roberts (as he will no doubt become in a matter of days) can keep this goal, I actually believe that he will be as acceptable a Justice as it is possible to find under the current conservative administration.

But one truth that I hold to be self-evident, that I often feel that more conservative thinkers are unwilling to accept, is that there is no such thing as total impartiality. We are all, conservative and liberal alike, influenced by our beliefs. While we can make it a goal, as no doubt Roberts does, to be as impartial as possible, there will always be some degree to which that is impossible. To some extent, anyone would be an "activist judge," to use the term that the Bush administration has so often used to deride some judges. Being a conservative does not make one any less of an "activist," although the fact that Bush has used the term "activist" to describe liberal judges almost exclusively would have one think it does.

While it may indeed be true, as some Republicans have contended, that Democrats wouldn't favor any candidate that President Bush would nominate, I can't help but feel that many would feel just a little better about a Bush-nominated justice if some "Bush conservative" would acknowledge that total impartiality was impossible. After all, it is only as we are aware of our prejudices that we can work against them.

But I haven't seen such an admission yet....

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