August 5, 2005

August 5, 2005 | Commentary on

Isn't Justice Supposed to be Blind?

As a law student, it's my job to study the Supreme Court, the Constitution and the interaction between the two. But I have to admit, events this summer have left me confused.

Well before Justice Sandra Day O'Connor announced her retirement, talk about changes in the high court had reached a fever pitch in Washington, D.C., and across the nation. Many guessed that Chief Justice William Rehnquist would be the first justice to leave the court in more than 10 years.

So when O'Connor, the first woman to serve on the court, announced her retirement, a whole new set of questions came up.

Many began pushing for the nomination of another woman. Others saw the prior nomination of Miguel Estrada to a lower court and the appointment of Alberto Gonzales as attorney general as an indication that President Bush should or would appoint the first Hispanic to the Supreme Court. Public opinion seemed to agree. In July 10 poll, about 75 percent said they favored the nomination of a woman, while about 66 percent said they would like to see a Hispanic nominee.

And here is where I first got confused. Why should gender and race be part of the equation when a president decides on a Supreme Court nominee? Isn't justice supposed to be blind?

A judge's job is to apply the law. The job of a Supreme Court justice is to apply and interpret the Constitution. Many of us believe that means adhering to the document in the manner the Founders envisioned.

A person's gender or race shouldn't affect these duties. All federal judges and justices take the same oath to uphold the law, so a woman should interpret the Constitution in the same way that a man would. This oath includes the tenet "I will faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States."

There isn't a separate oath for women that says they must consider "gender issues." There isn't a separate oath for minorities that says they must consider "race issues." In fact, a justice must uphold the Constitution in an objective manner. Gender, race, political affiliation, etc., shouldn't directly influence how he or she rules in a case.

It seems that President Bush got it right and nominated the best candidate for the Supreme Court. In his words, John Roberts, "has the qualities Americans expect in a judge: experience, wisdom, fairness and civility." Based on this evaluation, we should be inclined to believe that Roberts would uphold the oath and not let his personal views influence his assessment of any case before him.

That's how it must be. Canon 5 of the Model Code of Judicial Ethics forbids judges from letting their personal views and opinions influence how they will rule in a case. And this brings us to the other confusing thing. Why should speculation about how Judge Roberts might rule on a particular issue be considered when approving his nomination?

Now that Judge Roberts is the nominee, people are anxious to learn more about him. This is understandable. But how can Congress demand Roberts explain how he would rule on particular issues? As a nominee, Judge Roberts has a duty to not answer questions that delve into his personal opinions or ask him to speculate on how he might rule in a particular case.

Each case is fact specific, not issue specific. A good Supreme Court justice looks at the facts of the case and uses them to decide whether the Constitution was violated. And when they look to the Constitution, justices should read it as the Founders intended when they drafted it. There should be no conjecture about what the Founders might have meant, or what they would have written if they were drafting it today.

Justice must be blind. Race, gender and other personal characteristics shouldn't be considered when deciding on a Supreme Court nominee, and they shouldn't be considered when approving that nominee. And if they are going to be considered when justices evaluate a case, maybe instead of studying the law I should take acting lessons.

Claire Wendt, a law student at Pepperdine University, is an H.N. and Frances C. Berger Foundation intern at The Heritage Foundation (heritage.org).

About the Author

Distributed nationally on the Knight-Ridder Tribune's "KRT Campus" wire