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Spokane, Washington  Est. May 19, 1883
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Opinion

Evaluating a nominee for the court

Linda P. Campbell Knight Ridder

Somewhere on the drive Sunday from Denver to Colorado Springs, the mellow-voiced DJ started to opine on an ideal pick for the Supreme Court.

The interest-group blitz already has begun, I thought with some dismay, stirring from my passenger-seat snoozing.

Diana Ross, came the unexpected punchline – a woman, a bit crazy and successful in creating harmony.

So, this is how the Supreme Court scratches the surface of pop culture.

For all the profiling and dissecting and talk-show pontificating about Supreme Court nominee John G. Roberts Jr., it’s more than likely that huge segments of the U.S. population still don’t know the name of any justice besides Sandra Day O’Connor, who’s been ubiquitously in the news since she announced her retirement plans nearly a month ago.

It’s perfectly understandable. As we go about our daily lives, most of us, along with our friends and neighbors, aren’t particularly litigious. We probably aren’t directly affected by the most incendiary controversies – or the more mundane but intractable disputes – that make their way through the judicial systems to the highest court in the land.

U.S. Supreme Court justices don’t send us vote-for-me brochures or show up at fund-raising coffees or deliver stump speeches on bunting-adorned platforms. They cultivate an anonymity that probably is excessive for an institution that, ultimately, belongs to the people as much as the other two branches of federal government.

Despite their remoteness, they matter in ways large and small.

You have to read through only some of the thousands of petitions that arrive at the court each term, filed often by ordinary people who, rightly or wrongly, are willing to pay the $300 filing fee and provide the 40 required copies of each brief, convinced that justice won’t be done until their case has been resolved by the Supreme Court.

Fewer than 100 cases actually get accepted for argument and a full-fledged opinion. And a good third of those probably will result in a unanimous vote.

Even though many of the court’s rulings turn on technical legal points, they might determine whether an elderly woman gets to keep her lifelong home, whether a coach who complained about funding disparities between boys and girls sports keeps his job, how health insurers must treat patients, when police can search a home. They might decide what limits can be imposed on the Internet, whether a federal worker can sue over a job grievance and to what degree universities can restrict military recruiters on campus.

These aren’t esoteric hypotheticals but disputes that have implications for real people.

And hardly any of the questions are gimmes.

Some of the so-called grass-roots interest groups that are spoiling for a fight over Roberts’ nomination talk in terms of political wins and losses, as though adding a single new justice could settle truly wrenching debates about abortion, the death penalty, the relationship between government and religion and other social issues that may be unresolvable.

But when senators explore Roberts’ approach to judging during coming hearings, they shouldn’t focus on pinning him down on culture-war issues. They should try to assess how he views a judge’s role of applying the law to the facts before the court.

Given Roberts’ years of experience as a litigator – for the administration, then for private clients – several commentators have talked about his ability to “argue the case round or argue it flat.”

But, as a justice, he’ll have to choose between round and flat, between triangular and square, between vertical and horizontal.

Keep in mind that justices aren’t like calculators, simply plugging numbers into a formula. If that were their role, they’d be largely unnecessary.

They bring their life experiences as well as their inexperience; their vast legal knowledge as well as their limitations; their dispassionate reasoning ability as well as their passions; their convictions as well as their willingness to consider other arguments.

Those who say judges must merely interpret the law and not make it misunderstand the high court’s role. The Supreme Court isn’t a super-legislature, but it inevitably makes law by the way it interprets the Constitution, statutes and regulations that come before it.

Its credibility rests on the ability of its members to strive for an honest and independent evaluation of the law and the facts in each case – and that capacity might be what a new justice needs most.

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