Charlie Savage: Pressed On Compassion, Court Nominee Roberts Defers To Law

Roundup: Media's Take

Senate Democrats challenged Supreme Court nominee John G. Roberts Jr. all week to promise that he would look beyond abstract legal questions to the human circumstances of those who would be affected by his rulings.

Again and again, Roberts declined to say what they wanted to hear.
Reflecting on the four days of hearings that ended yesterday, liberals and conservatives came to opposite interpretations of Roberts's answers about compassion. For his skeptics on the left, Roberts's answers called into question whether he merited life tenure in such a powerful position, regardless of his considerable legal expertise.

"Let me go to the con side here," said Senator Charles E. Schumer, Democrat of New York, offering his assessment of Roberts. "First is the question of compassion and humanity. . . . It's important to determine not just the quality of your mind but the fullness of your heart, which . . . means the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all."

But for his conservative defenders, Roberts's answers showed precisely why they saw him as fit for the job.

"Nothing better exemplifies the chasm of difference between how the left and the right think about the courts," said Sean Rushton, executive director of the conservative Committee for Justice. "The wisdom we want is the wisdom to defend the structure of our system for everyone. What they're really saying is that the judge should bend or break the law in order to achieve a favorable short-term result."

Scholars said the tension at the confirmation hearing was the latest manifestation of a debate that has rippled through the legal world for the past century. Some legal specialists are rule-bound "formalists" who believe in following the letter of the law. But others say judges must pay attention to the real-world consequences of their decisions.

"This debate has to do with the urge some say it's a defect, others say it's a positive attribute of modern justices that judges want to be able to do justice in every case," said Boston University law professor Jack Beermann. "When people have a lot of discretion, they tend to use it in cases where they feel compassion, but it sometimes doesn't make a lot of sense as a matter of law."

Some of the most liberal justices in Supreme Court history have also been those who have been most willing to let their feelings for individual parties before the court spill into their legal reasoning, according to legal historians. Among them was Justice Harry Blackmun, the author of the Roe v. Wade abortion decision, who retired in 1994.

In a famous 1989 dissent to a court ruling that a badly beaten boy could not sue the government even though social workers failed to take him away from an abusive father, Blackmun used language that was hardly legalistic to argue that the boy deserved a day in court.

"Poor Joshua!" Blackmun wrote. "Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing."

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