By By Matthew G. Bisanz

Within the last week the nomination hearings for John Roberts will begin. Throughout the entire nomination process words like originalist, strict constructionist, and activist have been thrown around by various figures to describe what they do or do not desire in the next Supreme Court justice. In reality those terms are meaningless, as the people saying them probably do not hold fast to any specific judicial philosophy. Rather, they want a justice who agrees with them. For instance, Senator Patrick Leahy has stated that he doubts that Judge Roberts can be confirmed unless he agrees Roe v. Wade–the 1973 abortion case–is “settled law.” Clearly, Leahy does not care if Roberts is a strict or loose constructionist, rather he cares if Roberts will decide cases the way he, Leahy, wants them decided. Granted, one could argue it is human nature for the senator to want a like-minded judge on the court and President Bush did not consider any candidates with political philosophies opposite his own.

In reality, though, judges are supposed to be neutral arbiters of the fact, who do not pre-judge a case or irrevocably bind themselves to precedent. Therefore, while I support a thorough interrogation of Judge Roberts by the Senate Judiciary Committee, I hope the questions focus on his competence as a judge instead of his ideological beliefs.

Now, after saying how bad an ideological basis is in selecting a Supreme Court nominee, I wish to explain my reasons why John Roberts is not the best possible person for the Supreme Court. My first exhibit is an obscure 2003 case entitled Rancho Viejo v. Gale A. Norton. This case is too complex to describe in this article, but in short, Roberts found that since the Arroyo toad is so rare–it only lives in California–then it is therefore unprotected under various endangered species laws. This interpretation is specious at best, because if the animal in question were, for example, a bald eagle or polar bear, the court would have no problem protecting it. One might ask if Roberts would rule in favor of development in Arkansas, where the previously considered extinct ivory-billed woodpecker was just rediscovered last spring.

My second issue with Roberts is a slightly better known case: Hamdan v. Rumsfeld, which dealt with the legality of military tribunals. Judge Roberts concurred that it was permissible to try prisoners from Guantanamo Bay in military tribunals. Part of his argument said the Geneva Convention is between nations and thus does not create individual rights or responsibilities, and even if it did, the convention does not apply to members of al Qaeda. This is a particularly dangerous distinction, as it could be used by enemies who capture special force operatives to declare they are not prisoners of war, as they use non-traditional war-fighting methods. In dealing with enemy combatants, America should extend to its enemies the same rights it would want its own soldiers to have should they be captured by an enemy. A more reasoned approach would have left the trials up to the civilian court system in order to show the rest of the world the great legal freedoms enjoyed by all Americans.

My third issue with Roberts is his appointment does not represent a real cross section of America. The current Supreme Court has in its membership seven men, two women, four Protestants, two Catholics, two Jews, one African-American, one Italian and one Swede. If John Roberts is confirmed, the number of men will increase to eight and the historical number of non-minorities on the court will reach 105 out of 109. America is one of the most diverse nations in the world and its Supreme Court should at least attempt to reflect that diversity. It was said one of President Bush’s questions to the various candidates was how much they exercised, as if almost to imply that the most physically fit person was the best nominee. Well, Mr. Bush, 57 million Americans have some sort of life affecting disability and the idea of might makes right went out of style a little over 3,700 years ago–with Hammurabi’s Code.

I know the Constitution states the president shall nominate candidates for the Supreme Court, but in the politically charged atmosphere of the current era, it might be worth investigating some non-partisan manner of selecting justices. Presidents have viewed the appointment of justices as a way to place ideological copies of themselves in positions of power that will remain long after they have left office. However, only when they nominate the best possible candidate, instead of the most ideologically similar candidate, is when America wins.

Matthew G. Bisanz is a senior political science major. You may email him at [email protected]