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Roberts will interpret laws, not make them

Judge John Roberts, President Bush's nominee to replace William Rehnquist as chief justice of the United States, takes the witness stand himself today as his confirmation hearing before the Senate Judiciary Committee begins. Roberts is the perfect nominee to illustrate the enormous difference between the judges typically favored by conservatives and those favored by liberals. It is a profound difference and one that has the potential to affect the lives of everyday Utahns as well as our entire system of government.

I have been a member of the Judiciary Committee since I was first elected to the Senate. I served as its chairman and have participated in countless debates over the importance and role of the federal judiciary. That experience has taught me one thing for certain: Some committed liberal activists believe in using our federal courts to challenge the traditional values of ordinary citizens. That is why Bush is right to nominate honest constitutionalists like Roberts, a judge who will follow constitutional principles by interpreting rather than making the law.

Our Utah values are jeopardized when the courts become politicized by activists, whether from the left or the right. America's Founders understood that judges are different than politicians. As Alexander Hamilton explained, judges must have "neither force nor will but merely judgment." Only because they are objective and apolitical do we give federal judges the powerful trust of judicial review, and in most cases, lifetime tenures.

When this was the general understanding of the judicial role, nominees were confirmed to the Supreme Court with little fanfare. For example, in 1920, U.S. Sen. George Sutherland of Utah was nominated by President Woodrow Wilson for the Supreme Court. Later that same day, after a few brief remarks on the floor by the Judiciary Committee's chairman, the Senate unanimously confirmed him.

How times have changed. Today, many liberal activists no longer believe in blind justice and will not accept someone who will simply apply the law equally and objectively. They want someone who will deliver the results they want. As one of my colleagues explained, these activists want to know in advance whether nominees will, for example, rule in favor of workers over corporations. That is a question appropriate to a labor union election. A judicial nominee should not be committed in advance to any interest group but should be solely interested in objectively rendering justice. A Supreme Court justice's only constituent is the law.

These activists are determined to redefine fundamentally the judicial role in our democracy. For them, the judiciary should be a super-legislature, enacting laws that representatives — who must stand for re-election — would never agree to. They demand judges who will be their version of philosopher kings. Such an agenda runs counter to our Constitution, and the American people have never supported it.

As a result, many judicial confirmations have become embarrassing ideological spectacles. Today, liberal interest groups raise and spend millions of dollars in campaigns that would not be fair even in a heated election for political office. Like political candidates, these nominees are now grilled on every issue from abortion to zoning laws. Some liberal senators have already submitted dozens of improper questions to Roberts, demanding detailed answers, even though providing a response could violate the canons of judicial ethics that require jurists never to prejudge a case.

Other senators have actually demanded that Roberts agree with them on particular issues like Roe v. Wade; otherwise, they will vote against him. When we create litmus tests for nominees and demand that they prejudge cases, we ask them to exercise their political will. Demanding future policy promises from judicial nominees and holding the threat of an unconstitutional filibuster over their heads is no way to exercise our senatorial responsibility of advice and consent.

The role of the judiciary is not an "inside the Beltway" issue. Many of the decisions of our federal judges impact every citizen in every state. When judges deliberately ignore the Constitution's plain meaning, they dismiss the sovereignty of the American people, replace our traditional values with their own and deny our democratic heritage.

I have seen the damage done to our culture as a result of activist Supreme Court decisions. It is why I have proposed certain constitutional amendments over the years, creating some controversy. But when the Supreme Court abandons the original Constitution, we can only restore its meaning through a constitutional amendment.

It is not only Supreme Court justices who are sworn to uphold the Constitution. As a U.S. senator from Utah, I am sworn to the same duty. As I listen to Roberts this week, I will exercise this duty by making sure that he will exercise his judgment to interpret, rather than make, law. Only then will the judiciary protect and respect the Constitution and the values of Utahns and all Americans.


Orrin Hatch is Utah's senior senator.