Political divide: Roberts battle highlights gulf between parties

With the John Roberts confirmation hearings over, there is every reason to believe that he will be a worthy successor to the late Supreme Court chief justice William Rehnquist.

Roberts performed ably, embracing a modest judicial role, striking a sound balance between respect for stare decisis and the need to "revisit" flawed precedents, and rejecting the use of constitutionally irrelevant foreign law. Roberts also properly refused to indicate how he would rule in future Supreme Court cases.

The next confirmation battle, over Justice Sandra Day O'Connor's successor, is likely to be tough.

Nonetheless, President Bush can win this battle, provided that he wages it within the proper philosophical context, by arguing that, in our constitutional system, the courts should remain judicial institutions and that most of the policy calls should be made by the political branches.

Senate Democrats have accused Roberts of hiding his views, claiming the American people are entitled to know where he stands on key constitutional issues, including abortion, end-of-life matters and the separation of church and state.

Withholding judgment

Yet nobody, including Roberts himself, can or should know how he would rule in a specific case, until that case comes before him. Having judges behave as politicians, seeking political support from public commitments concerning their future votes, is utterly incompatible with the proper judicial role. Going down this path would fatally undermine judicial independence and legitimacy.

In fact, far from being about Roberts or any future nominee, the pyrotechnics of the Senate hearings are attributable to the fact that the philosophic gulf between our two political parties has grown vast -- and nowhere more so than with respect to the federal judiciary. Most Republicans want courts that are legal institutions, not political bodies. Democrats, on the other hand, insist on courts devoted to specific policy outcomes (invariably items on the liberal agenda).

Not content with helping transform the judiciary into the most important player in domestic affairs, and most certainly in cultural trends, Democrats push for courts that are activist in foreign and defense policy, micromanaging, for example, the treatment of captured enemy combatants.

Lost confidence

The hysteria of the Democratic Left is understandable. It has lost confidence in its ability to compete in the political arena and sees a politicized judiciary as its only hope to advance its agenda. The policies it desires, and the Supreme Court has so far advanced, are ones that encourage radical personal autonomy in moral and cultural matters. Activist judges announce principles and reach results that have no plausible connection to the Constitution. Thus, it is increasingly obvious that activist judges are issuing decisions that have no basis other than the judges' personal preferences. There is more than a grain of truth in the statement that the court represents the blue states in their contest with the red states.

The process of confirming Roberts, and choosing O'Connor's successor, has triggered a serious national debate about the judiciary's proper role.

This debate will have long-term benefits, provided that the president decisively wins it.

The presidency is, as Theodore Roosevelt put it, a "bully pulpit." Now is the time to use it. The president can remind us that the greatest transformations in American political life, from the development of the Bill of Rights to the enfranchisement of former slaves and women, were all accomplished democratically through constitutionally proper procedures, and that placing on the court justices who would take judicial shortcuts, often in defiance of the Constitution and the electorate, shows nothing but disdain for American voters.

Robert Bork, a former U.S. Supreme Court nominee and U.S. Court of Appeals judge, is a fellow at the Hudson Institute. David Rivkin served in the Reagan and George H.W. Bush administrations and is a law partner at Baker and Hostetler.