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By all accounts, the Democrats did not lay a glove on John Roberts during US Senate confirmation hearings. Sen. Dianne Feinstein (D.-California) seemed to think that she was interviewing Roberts for a spot on the Oprah Winfrey show rather than measuring his qualifications for the US Supreme Court. She complained that she had asked Roberts to talk to her as a "son, a husband, a father" about "gut-wrenching" end-of-life decisions, and he had offered only "a very detached response."
Unable to impeach Roberts's integrity or legal abilities, and wisely avoiding any discussion of the legal reasoning underlying their favorite Supreme Court precedents, Democrats confined themselves to demanding that Roberts commit himself not to tamper with existing precedents on abortion, church-state separation and gay rights.
Conceding that Roberts's legal abilities more than qualified him for the post, The New York Times nevertheless opposed his nomination on the grounds that his refusal to discuss how he would rule in particular cases rendered him too much of an enigma.
Curiously, the Times took a very different approach to the nomination of Ruth Bader Ginsburg 11 years ago. Ginsburg had a long record as an advocate for the ACLU and women's groups on a whole series of highly charged issues. Endorsing her confirmation, the Times noted that Ginsburg had "dwarfed... her questioners" and "outclassed those entrusted to advise and consent on her nomination" with her "focused legal mind."
That characterization, while doubtless true, applied with equal force to Roberts, who is generally conceded to be the outstanding appellate lawyer of his generation.
Ginsburg, opined the Times, was correct in demanding that the senators judge her "as a judge, not as an advocate," and refusing to commit herself on particular issues, like the death penalty and gay rights. What distinguishes the Times' diametrically opposed approach to the Ginsburg and Roberts nominations? Only its confidence that Ginsburg was more sympathetic to its preferred outcomes.
THOUGH YIELDING to no one in my contempt for the Times, the paper is hardly unique in casting about for any principle handy to reach the desired result. Few of those who frequently criticize the Israeli Supreme Court for usurping the authority of the other branches of government, for instance, rushed into print to laud the court's handling of the razing of synagogues in Gush Katif.
Yet the Supreme Court deferred to the political branches, after first sending the decision back to the cabinet to ensure that it had considered the potential impact of its decision on the fate of Jewish holy places around the world.
True, the court has frequently taken a much more active response in foreign policy and security issues. But that should not have prevented defenders of judicial restraint from praising its decision concerning the Gush Katif synagogues. If the usual critics, like myself, did not heap praise on the court, it was likely because they hoped for a ruling against the government's initial decision to destroy the synagogues, no matter how interventionist.
The Palestinian mobs have already loosed their fury on the holy places of Gush Katif, and by the time that this piece appears, John Roberts will have been confirmed as chief justice. I cite the inconsistencies of critics of the Roberts nomination and of our Supreme Court, only to make a broader point about the generalized weakness of our principles. For most of us most of the time, the immediate result is all that counts.
We cheerfully attribute our inconsistencies to a certain Whitmanesque largeness of spirit: "Do I contradict myself?/ Very well, then, I contradict myself,/ (I am large, I contain multitudes)." More frequently, however, those inconsistencies reflect only our shallowness. Most of us expend little effort enunciating core principles, much less in attempting to live our lives in accord with them.
IF THAT is true of our thinking about public issues, it is even more disastrously true with respect to the way we think about ourselves. (Few of us, after all, will have a major say on the great public issues.) When we look in the mirror, most of us see a jolly, fine fellow looking back at us. Oh, we have some dim awareness that there are ways in which we could improve and that we have upon occasion wronged others. But we also know all the extenuating circumstances that mitigate our wrongdoing. Judging our own failings, we inevitably show a certain generosity of spirit.
Let someone else, however, act toward us as we have acted toward others and that generosity quickly disappears. We cut little slack to others, even those closest to us, when we are adversely affected by their behavior, and are notoriously slow in accepting pleas in mitigation.
Our inconsistent standards of judgment reflect how slight is the self-scrutiny to which we typically subject ourselves. At no time of the year is that lack of self-scrutiny more damaging than between Rosh Hashana and Yom Kippur, when we beseech man and God for forgiveness and seek to wipe our slate clean.
But without thinking deeply about our actions, we cannot hope to break out of familiar patterns in the year to come or to be forgiven for our past failures. Before that can happen, some spiritual accounting is necessary. And that involves recognition of our failure to articulate guiding principles for our lives or to abide by them.
"If I've done anything to hurt you, and if you really care about this sort of thing, please forgive me" is not likely to arouse the mercy of either God or those closest to us.
May we all be inscribed in the Book of Life.
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