The human side can't be denied

September 26, 2005|By Ellen Goodman

BOSTON -- I've never been a big fan of sports metaphors. I don't slam. I don't dunk. I don't hit it out of the park. And I cannot give a proper baseball analysis of Judge John G. Roberts Jr., the man soon to become the chief "umpire" of the Supreme Court.

The one sports commentary I can offer is the tune I've been humming from Damn Yankees, the baseball musical of my youth: "You've gotta have heart, miles 'n' miles 'n' miles of heart."

The need for heart was a constant refrain during the senators' failed search for Judge Roberts, the man. During the hearings, one uneasy senator after another, from Charles E. Schumer to Arlen Specter, from Dianne Feinstein to Richard J. Durbin, openly asked (1) if Judge Roberts had a heart, (2) what was in it, and (3) how full it was. The concern about his cardio-compassionate fitness for office prompted Democratic leader Harry Reid to come out against Judge Roberts, saying, "I'm not too sure if his heart is as big as his head."

In these days, the personal is political, sometimes to a fault. But Judge Roberts strenuously resisted the notion that the personal is judicial. Asked whether there was room in interpreting the Constitution for a judge's own values, he answered clearly, "Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision."

Indeed, I don't know anyone who believes a judge should rule on his "feelings," let alone his heartache. We know a great deal about the private lives of public figures these days, including the fact that biography isn't destiny.

Since the hearings often danced around the issue of abortion, compare Judge Roberts with Justice Harry A. Blackmun, the Nixon appointee who wrote the Roe vs. Wade decision for a 7-2 majority in 1973. One of Justice Blackmun's daughters had become pregnant in college, dropped out and married three weeks before having a miscarriage. Judge Roberts married late and adopted two children whose mothers carried them to term.

Do such life experiences influence attitudes? Before we fashion ironclad connections, I am reminded by Linda Greenhouse's splendid biography Becoming Justice Blackmun that the original Roe decision focused more on the fate of doctors than the fate of women. Justice Blackmun had also spent years as a lawyer for the Mayo Clinic.

Nevertheless, the idea that a judge is just an umpire in a black robe calling balls and strikes objectively looks pretty odd to anyone in - block this metaphor - the grandstand. Go back again to the abortion cases. The guessing game was all about whether Judge Roberts would overturn Roe vs. Wade, the case that Mr. Specter dubbed a "super-duper precedent."

Yet the case that might matter the most is Casey vs. Planned Parenthood, the decision that reaffirmed Roe while wrenching a new compromise out of the court. A bare majority ruled that states could restrict abortions as long as they didn't impose an "undue burden" on the right of abortion.

Since 1992, states have passed 487 regulations mandating everything from waiting periods to lectures. How many laws regulate away a right? As cases wend their way to the Supreme Court, judges will decide which burdens are "undue." If there was any subjective judgment, that's it.

Put aside the abortion cases. The hearings raised flags from his past about what a Roberts court would mean for civil rights, equal protection, presidential power, even that girl arrested for eating a french fry in the subway. This is how he lost Harry Reid.

When asked - again - whether he would be on the side of the little guy, Judge Roberts said it depended on whether the Constitution was on the side of the little guy. Did that make him an "umpire," in his word, or an "automaton," in Dianne Feinstein's word?

Judge Roberts gives every indication of being an unflappable, congenial man of integrity. I would roll my dice in his favor simply because he's as good as it gets from this administration.

But I am uneasy about the nominee who sincerely or disingenuously denies the man behind the robe. That denial can actually make it harder for a judge to see his own prejudices. More to the point, it can make it harder to see the real people behind the constitutional principles. In the end, that's the way the personal is judicial. May the next chief justice take it ... to heart.

Ellen Goodman is a columnist for The Boston Globe. Her column appears Mondays in The Sun.

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