Saturday, September 17, 2005

Judge John Roberts

I haven't said much about him because, frankly, I don't know much. The impression I get is that he's a conservative very much in the Rehnquist mold, willing to correct the courts jurisprudence where he believes it has erred, but doing so in small steps to avoid rocking the boat too much. And all of the "Roberts will destroy America" nuts need to get a grip. In any event, there has been a lot running around the internet recently related to his confirmation hearings that I'd like to share with you.

Here is one blogger's take on Roberts:

Both [Roberts and Scalia] essentially subscribe to what I refer to as Burkean Originalism–i.e., a jurisprudential philosophy that balances originalism with the doctrine of stare decisis. Jurists who subscribe to this school of thought might, for example, uphold Griswold (right to contraception) but vote to overrule Roe on the basis that the holding of the former has become widely accepted by the vast majority of Americans (i.e., woven into the fabric of our constitutional republic), whereas the latter remains a hotly contested and divisive issue (as evidenced by the last two days of statements and questioning at Roberts’s SJC hearing).

Meanwhile at The Volokh Conspiracy, the confirmation hearings are discussed, shedding more light on those who are questioning than the candidate answering:

Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy and Schumer and Durbin keep settting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consumate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

And finally, Ann Althouse has an amusing example of selective memory with respect to past cases:

You know one Supreme Court case the Senators aren't grilling Roberts about? Despite all the talk about the Commerce Clause at the hearing, none of them wants to bring up Gonzales v. Raich, the medical marijuana case. Wouldn't you think the Democrats would want to champion the rights of the powerless, suffering cancer patient, oppressed by the government, with whom the heartless Supreme Court Justices could not empathize? (And I'm putting the question that way because that is the attitude many of the Democratic Senators are taking, such as yesterday when Dianne Feinstein mourned over all the victims of gun violence the Supreme Court didn't care about when it struck down the Gun-Free School Zones Act in Lopez.)

Angel Raich lost her case because the Court interpreted the Commerce Clause as broad enough to support the Controlled Substances Act, with its comprehensive ban on marijuana, which reaches even homegrown, home-consumed marijuana, even when it is used for medicinal purposes by severely ill persons according to a state regulatory program, a program adopted as the result of a democratic vote by the people of a state. If the Court was wrong, it was wrong because it found that Congress had too much power. The Senators don't want to push Roberts to say that they lack power. They only want to hear that the power is there for them to do everything they want and that their judgment about what is best is better than any court's judgment.

Yes, I realize these shed more light on the Senate than Roberts. So sue me. I always get a good laugh at political pretension, and the Senators certainly don't seem to be lacking in that on either side of the aisle.


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