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28° Good Afternoon

Roberts' pitch more like a curveball

Supreme Court nominee John G. Roberts has been telling the

Senate that it doesn't matter where his team loyalties lie because he knows

that his job as a judge is "to call balls or strikes and not to pitch or bat."

This opening statement to the Senate Judiciary Committee - which concluded

hearings yesterday and is scheduled to vote on Roberts' nomination Thursday -

was meant to reassure members that he will not be a judicial activist. I am not


The idea that a judge interpreting the Constitution is just calling balls

and strikes is a pernicious myth. In the Nixon era, it was called "strict

constructionism." Conservatives argued that because the Constitution has an

objective, discoverable meaning - a fixed strike zone - judges who interpret

the Constitution expansively (as protecting, for example, a right of privacy)

are simply wrong. Constitutional interpretation is not baseball.

A baseball fan looking at an instant replay can often verify that what the

umpire called a ball really was outside the strike zone. But how can an

observer tell if a judge was correct in interpreting the Constitution as

containing a right to privacy? A judge must make choices among politically

charged competing theories of constitutional interpretation to decide such

questions, and so must the observer evaluating the judge.

For example, the Constitution prohibits "cruel and unusual punishment."

Some judges believe that executing juveniles or the mentally retarded is not

"cruel and unusual punishment" because the framers of the Constitution did not

disapprove of such executions.

Others believe that it is cruel and unusual because evolving standards of

decency have led many states and most other countries to condemn these

practices. In deciding whether the Supreme Court was correct in adopting the

latter view, a reader will make the same kinds of choices the justices made.

In my own informal polls, virtually every Republican thinks the Supreme

Court's reasoning in Bush v. Gore was correct; virtually every Democrat thinks

the majority was wrong. We have sharp disagreements not only about results but

even about the shape and size of the strike zone itself: Is it the court's job

to decide questions about abortion, the death penalty and election process, or

to leave such questions to the political branches?

Roberts also reassured the senators that he will keep an open mind as a

justice. We expect umpires not to show any team loyalty at all. Fans can argue

about whether particular umpires are being impartial, but at least everyone

shares the same frame of reference - a clearly defined strike zone with slight

variations among different umpires.

My sports fan husband notes that there is not total uniformity even among

umpires, some of whom call strikes at a low knee or high shoulder level. But

because our ideas about location of the constitutional strike zone vary a lot

more radically than that, being an open-minded judge is more of a challenge

than being a fair umpire.

Another myth floating around the confirmation hearings held that Roberts is

a cipher and we do not know what kind of decisions he will make as a justice.

Roberts has, of course, left a long paper trail of memos from his years of

service within the government (not all of which have been released to the

Senate). He says that these memos don't count because as a lawyer for the

Reagan and Bush administrations, he was not necessarily expressing his own

beliefs. This slate-wiping is too convenient and too broad.

The briefs Roberts wrote for the government do indeed represent his

clients' choice of position. But many of the memos Roberts wrote urged his

employers to take more extreme positions to resist expansive enforcement of

civil-rights laws, for example. In some memos, he certainly seemed to be

writing in his own voice: "I honestly find it troubling . . ." The memos show

that, as his colleague Bruce Fein said, he was one of an "ideological band of


Roberts contends that he can put aside his firmly held conservative views

when he dons his judicial robes. I don't doubt that he intends to be

open-minded, but I do doubt that he can or will shed his partiality. Kenneth

Manning, a political scientist who has studied the 190 decisions Roberts has

made so far as an appellate judge, concludes that his positions are "very"

conservative on criminal justice matters (compared with other appellate judges,

not exactly a liberal group), and "exceptionally" conservative in cases

involving civil rights and civil liberties.

Are these the calls of an impartial umpire, or results of the instinctive

positioning of an experienced fielder loyal to his team?


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