Appropriate Arguments in a Judicial Confirmation

While I was taking a Google News break from trying to memorize contract law, I came across this news article from the LA Times. I was disturbed by what I read. If you're a regular reader of this blog, then you're aware of my thoughts on the appropriate role of judges in society. But even beyond that, I think most people would agree that we want judges to be fair and impartial. According to this article, opponents of the confirmation of Judge John Roberts are hoping that he isn't impartial. Let me quote the quote from Sen. Ted Kennedy (D-MA):

"Americans deserve to know if nominees will be on the side of justice and individual liberties, or if they will side with powerful special interests."

(As an aside, I try to refrain from using Sens. Kennedy or Hillary Clinton in my arguments because Republicans tend too often to reduce arguments to "Kennedy and Hillary are for it, so it must be bad." Although I'll admit that usually I am against whatever they're supporting, I prefer critiques based upon policy and not personality. I leave the rants to Nies.)

So based on a bare reading of the quote, Sen. Kennedy wants nominees to choose sides ahead of time. This is absolutely what judges are not supposed to do. The article continues about how opponents of the confirmation are using such "populist" rhetoric, specifically referring to the political campaign of Al Gore. The debate in a political campaign should be nowhere close to the debate in a judicial confirmation.

I can't stress enough how such arguments are destructive to the concept of the impartial judiciary. No side should be making arguments based upon who a judge should be for or against. If the law says powerful special interests win the case, then they get to win the case. To do otherwise will give unelected judges the ability to determine what policies are good and bad in our nation.

Now some confirmation opponents are doing it correctly. Toward the end of the story the Alliance for Justice argued that his views on the commerce clause would undermine many laws they support. This is at least an argument based upon his interpretation of the law and not what side he's on.

If Judge Roberts has an honest-to-God bias for any group, then it is a proper line of inquiry, but such a finding cannot be based upon a statistical average of the winners in his cases. It must be based upon sound evidence that Judge Roberts intentionally (or at least highly unreasonably) construed the law in a manner favorable to one side. No such argument has been made and I doubt it will. My guess is that Sen. Kennedy is hoping just to get people fired up instead of making real arguments about bias.

I saw the same thing happen a few months ago during the filibuster debate. I watched Sen. Feinstein (D-CA) (yes, on C-SPAN) go through a list of sympathetic parties and say how horrible it was that Judge Janice Brown decided against them. She actually made the argument that Judge Brown was pro-rapist because she wrote an opinion that favored the rapist's rights as a defendant. Sen. Feinstein had absolutely no explanation behind any of her arguments, no substance as to why Judge Brown was a bad jurist.

In the end, I'm writing this post so that any one who reads this will be on notice to pay more attention to arguments in confirmation battles. If the argument has no explanation, then please disregard it. Or at least do some research before believing it.