01:00 AM EDT on Sunday, October 16, 2005

NOW THAT John Roberts has been confirmed as chief justice of the United States, both conservative and liberal activists are circling the wagons for the real fight. After all, Roberts went from replacing Sandra Day O'Connor, a moderate in the eyes of many, to supplanting Chief Justice William Rehnquist, who by all accounts was a bulwark of judicial restraint.

One really never knew what Chief Justice Rehnquist thought about abortion, affirmative action, the environment, etc., but everyone knew where he stood on the limited role of judges under the Constitution.

It appears that Roberts has a similar view. Whatever Roberts believes, it is not likely that he will turn out to be a stricter constructionist than Rehnquist, which is one reason he was confirmed by the Senate in short order.

But activists on both sides have been gearing up for a rip-roaring match over -- it now appears -- President Bush's nomination of Harriet Miers to be a Supreme Court associate justice. They are convinced that such an appointment could be the key to the law we live under for decades.

The next nominee can expect to be firmly pressed by Senators Joseph Biden (D.-Del.), Edward Kennedy (D.-Mass.) and others on her personal ethical and moral beliefs, as well as on her probable vote on issues likely to come before the Supreme Court in the future. The time seems ripe once again to ask whether we really don't have things a bit upside down when it comes to the judicial-appointment process.

Knowing how judges will vote in advance on issues that will probably come before them is not, and never was intended to be, a piece of democracy in this country. The question used to be whether the judicial appointee had the necessary temperament, experience and restraint to wield the tremendous power handed to the confirmed nominee.

It was considered bad form to ask a judicial nominee questions that might elicit answers hinting at how he or she might vote on a pressing social issue, and improper for the nominee to answer such questions.

In any event, because Congress made the law and the Supreme Court simply determined (if asked) whether it passed constitutional muster, a nominee's religious or political beliefs were not terribly relevant.

But all that has changed. In numerous cases over the past several decades, the Supreme Court has boldly stepped outside the Constitution to act as a super-legislature. It has decided questions of ethics and morality that have very little to do with the Constitution, and very much to do with our core beliefs as a people.

Roe v. Wade is a perfect example. No serious constitutional scholar, regardless of political bent or private view of morality, denies that Roe is constitutionally infirm. There is simply no support in the U.S. Constitution for the doctrine espoused by the majority of the court.

As the late Chief Justice Rehnquist stated in his dissenting opinion in Roe, the majority's opinion was "far more appropriate to a legislative judgment than to a judicial one." Justice Byron White in his dissent proclaimed it to be an exercise of "raw judicial power." And in 1986, Justice O'Connor candidly proclaimed: "[T]he court's abortion decisions have already worked a major distortion in the court's constitutional jurisprudence."

Abortion is a terribly complex moral, ethical and social issue, and it deserves a democratic approach: debate, medical research and votes by all of us who live under the law. It deserves a legislative process state by state. Instead, seven unelected men appointed for life ruled that a woman could terminate her pregnancy on demand. And in Doe v. Bolton, decided on the same day, reinforced abortion rights.

No debate, no reflection, no popular vote; in short, no democracy. The result was predictable: As Justice O'Connor said in 1986, the "Roe framework is clearly on a collision course with itself."

Roe has spawned the recent partial-birth lower-court decisions heading to the Supreme Court. Polls consistently show that a significant majority of the American people oppose the procedure, and legislative enactments confirm that. But federal judges feel constrained to decide challenges to those laws on the flimsy reasoning of Roe.

U.S. District Judge Richard Casey, of New York, found the partial-birth-abortion procedure to be "gruesome, brutal, barbaric and uncivilized." Yet he struck down the ban, because he had to follow the precedent of Roe.

But you can't take abortion out of politics. America simmers over this issue. Last year, both "Ms. Roe" (Norma McCorvey) and "Ms. Doe" (Sandra Cano) testified before Congress that they had been exploited by their lawyers, whose foremost objective was to legalize abortion. Polls confirm that the abortion issue significantly affected the last presidential election.

People of goodwill on both sides of the issue care very much about it, and see the Supreme Court as the key to the abortion question going forward. But abortion jurisprudence perfectly demonstrates why the Supreme Court is not and cannot be the place for legislative enactments.

Both liberal and conservative activists should poke their heads out of the wagons long enough to see that the fight over John Roberts, Harriet Miers or any other Supreme Court nominee should not be based on their personal religious, political or moral beliefs; that field is far too narrow and the power transferred far too great. Instead, the real battle is ensuring that the Supreme Court stick to its job of interpreting the Constitution, and leave off its recent habit of issuing moral edicts cloaked in constitutional penumbras.

In short, we should all insist that the great ethical questions of our time be decided by the people, not by a handful of unelected lifetime appointees. Only then will democracy work; only then will the people be heard, the votes taken and the laws enacted pursuant to the will of the people. And if those laws turn out to permit people to design their own babies, terminate unwanted children based on the sex of the child, take the life of the unwanted or infirm in the name of mercy, marry members of their own sex, or any other number of things that until recent years were not thought possible in this country, at least the democratic process will have been followed.

In a democracy, some will oppose laws that are enacted and will attempt, through the legislative process, to change them. That is how it is supposed to work. And in the end the country will reap what it sows. As it stands now, the people are denied a chance to plant.

Robert Duffy, a lawyer in East Greenwich, is an adviser to the Rhode Island Right to Life Committee.