Chief Justice nominee John Roberts faced tough questions from the Senate Judiciary Committee last week regarding how he would rule on various issues if confirmed.
Those who oppose Roberts worry about his potential to legislate from the bench rather than enforce laws as precedent dictates.
The recent debate Wednesday at the Hinckley Institute of Politics raised the question: A little more than 218 years after the adoption of the U.S. Constitution, are judges overstepping their bounds?
"The fact that we put judges on the bench for life makes this question extremely important," said Dee Benson, chief judge of Utah's District Court. "If we have a judge who is inclined to be an activist on the bench, we have just appointed a legislator for life."
Benson compared himself and other judges to umpires in a baseball game who call strikes and balls.
"Nothing is more of a first commandment to me than judicial restraint," Benson said.
However, he also publicly admitted that he has acted as a judicial activist. In "three or four" past criminal cases, Benson said he altered sentences to be less severe than the law ascribed.
When Benson ruled outside the law, "it's been when circumstances have been so remarkably harsh, and everyone in the room agrees," he said.
Having ruled in line with his beliefs before, Benson said judges know when they are being activists and allowing their philosophy to enter their decision-making process. He added that it should only happen in rare circumstances.
"The more the judges influence political decisions improperly, the more we should rip up (the Constitution)," Benson said. "Because we no longer operate under a system of laws, we operate under a system of what that judge thinks is a good idea at that time."
As for Roberts, Benson joked he had a bad case of jealousy but that Roberts seemed perfect.
"He sounds quite conservative, but his conservativism shouldn't enter the realm," Benson said. "I think he'll get confirmed by a landslide."
U student Jeremy Jones, a junior in philosophy and political science, said although he disagreed with some of Benson's points, he was impressed by the judge's knowledge.
"He drew a distinction between activism and adhering to the law, but it's hard to claim there's a clear distinction. Law has to be interpreted and interpretation is activism in a sense. You could label those who want to make law better and those who want to keep it the same as activists," Jones said. "But I respect him; he's a quality judge and I feel like I don't have to be afraid of him."
Benson told The Chronicle that students should know their involvement in the political process is vital.
"They really do have a lot more power than they may think," Benson said. "Everybody should be worried about the courts of the country...I think what people sometimes tend to think is they can't be effective, they can't be an important part of the democratic machinery. I still think you can be."
sgehrke@chronicle.utah.edu
