"Judge Shopping" at the Supreme Court Level

It is simply ludicrous for the Bush Administration, for Judge John Roberts, and any others to claim that there is no bargaining or calculation in the selection of Supreme Court Judges. Judge Roberts shamelessly refused to answer questions about judicial philosophy and interpretation of court cases to the U.S. Senate on the grounds that it was inappropriate for a Supreme Court nominee to bargain or make commitments in exchange for votes for appointment. Who does he think he is trying to kid?

The bargain being offered is subtle, but it is real. Judge Roberts offers the bargain to the Bush Administration that his past record as a staff lawyer in conservative administrations and other legal work will preview his work on the Supreme Court. This is not openly stated, but it is the real bargain that the Bush Administration is settling for. The other end of the same bargain is that Judge Roberts will not reveal his real agenda and will silence himself in certain respects; that is, he will silence himself with regard to any area of controversy that might upset his nomination.

"Judge shopping" is a normal part of the process of prosecution and litigation. Michael Dorf of Findlaw.com expresses this very clearly in a recent editorial [1] regarding a criminal prosecution matter: Judge shopping for the Supreme Court is allowed for the President, who appoints the nominee, but not for the opposition party, who may want to reject the President’s choice in their role of advice and consent.

Another completely ludicrous notion espoused by Judge Roberts and the conservatives at this time is that they are interested only in applying a judicial philosophy of accepting "rule by law" as if law is unambiguous and not requiring interpretation. If this was the case, we could eliminate human judges altogether and simply use computers to evaluate cases. If simply applying the rule of law to judicial decisions was the answer, then highly trained attorneys who become judges should routinely return 9-0 verdicts at the Supreme Court level, and verdicts that were not unanimous should be rejected and not made part of the law of the land.

The reality is that the Supreme Court’s glory in the history of the U.S. is when it has overruled bad precedents and increased freedom through novel interpretations of the Constitution. The Supreme Court at its best has ruled against the vested interests of the rich and powerful and in favor of the poor, the disenfranchised, the abused, the neglected and the powerless.

Judge John Roberts is the poster boy for the ruling class, the status quo. His life has been the opposite of Thurgood Marshall’s, who made history as a judge who was an advocate for justice against the prevailing tide of the status quo. Judge Roberts’ job, if elected, will be to undo the work of legal great like Thurgood Marshall, but not in obvious ways. The clever mind of Judge Roberts will be put at work to try to roll back protections of the environment and the poor and of minorities and the disenfrachchised, while at the same time making it appear that such roll-backs are absolutely necessary in the protection of "freedoms" of the majority.

Judge Roberts is dangerous because of his subtlety and his demeanor. He was raised to "play the game" for the ruling classes in such as way as to win, while looking benign and pretending to hold the values he secretly casts away. Ralph Nader would make a really good Supreme Court Chief Justice, because he is just the opposite of a John Roberts. But in his judge shopping, George W. Bush picked the sort of judge he wanted, and it should be obvious that Judge Roberts is the legal product that Bush bargained for, yet will not be a good bargain for many of the American public.


[1]. http://writ.news.findlaw.com/dorf/20021127.html