Posted on 07/21/2005 4:30:51 PM PDT by LibertarianInExile
On Tuesday evening, President Bush nominated Judge John G. Roberts Jr. to the Supreme Court of the United States. "He will strictly apply the Constitution and laws, not legislate from the bench," Bush stated of Roberts. Conservatives immediately leapt on the Roberts bandwagon, echoing Bush's sentiments. Talk radio commentator Hugh Hewitt labeled Roberts "a home run." The Heritage Foundation's legal experts cited Roberts' "proven fidelity to the Constitution and the rule of law" in backing his nomination. Bill Kristol of The Weekly Standard called Roberts "a quality pick."
Perhaps Roberts is a safe pick. He's politically conservative and undoubtedly brilliant. He will sail through the Senate without much hassle. But it is shocking to watch many constitutional originalists and textualists abandon their philosophies in favor of cheap politics.
Roberts is not an originalist. There is nothing in his very short jurisprudential record to indicate that his judicial philosophy involves strict fidelity to the original meaning of the Constitution. He is not Antonin Scalia, nor is he Clarence Thomas. At best, he is William Rehnquist, for whom he once clerked. While Rehnquist has been a steady political conservative on the bench, the bench should not be about political persuasion: It should be about upholding the explicit words of our Founding Fathers. There is nothing to indicate that Roberts prioritizes the words of the Constitution above other, more immediate political concerns.
Roberts made his most eloquent statement of his judicial philosophy during his 2003 confirmation hearings for the D.C. Circuit Court of Appeals. He repeatedly emphasized "judicial restraint" and referred to the framers' desire that judges "[discern] the law, not [shape] policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench." There is something conspicuously absent from this description of the judicial role: an appeal to the original meaning of the Constitution. Roberts rails against "personal views" and advocates judicial neutrality, but he does not suggest an alternative source of values. No judge truly believes that he is imposing personal views on statutes; every judge appeals to some higher set of values, be they moral or legal. Some worship doctrine. Others worship "evolving standards of morality." But there is no substitute for the higher authority of the Constitution itself -- and this, Roberts does not say.
Unfortunately, we have no choice but to closely examine Roberts' words, because he has virtually no judicial record. No one knows where he stands on key cases like Roe v. Wade. Any originalist, whether politically liberal or conservative, would overturn Roe in a heartbeat. It is, quite simply, one of the worst decisions in constitutional history. Yet Fred Barnes of The Weekly Standard writes, "Is Roberts likely to join an anti-Roe bloc on the court? Probably not."
Meanwhile, speculation about Roberts' role on the court runs rampant. Some claim that Roberts will be another Rehnquist; others claim he will form a "dynamic center" with Justices Anthony Kennedy and Stephen Breyer. When the Supreme Court wields as much clout as it does, why should originalists sit by while a new 30-year swing-bloc is formed?
To this, some may answer that originalists should simply trust President Bush. I ask: Based on what track record? Republicans have named seven of the last nine Supreme Court appointees. Those justices include anti-originalists Kennedy, John Paul Stevens, Sandra Day O'Connor and David Souter. Originalists, take note: President George H.W. Bush believed that Souter would be faithful to the Constitution. In fact, H.W.'s nominating description of Souter sounds virtually identical to his son's in favor of Roberts: "I have selected a person who will interpret the Constitution and, in my view, not legislate from the Federal bench." After a decade of legislating from the bench, it is eminently clear that Souter's stealth candidacy and subsequent decisions have undermined the Constitution and the American system of government as a whole.
Yes, Roberts is a political conservative. His track record amply demonstrates that. But politics is no guarantee of jurisprudence: Just ask Earl Warren. Politics is no guarantee that the Constitution will be upheld: Just ask Warren Burger. Perhaps Roberts will turn out to be a Rehnquist. That will be satisfactory, politically if not constitutionally. But President Bush had the once-in-a-presidency opportunity to nominate a clear originalist. Instead, he abandoned absolute adherence to the Constitution in favor of political expedience.
"...I do care about the Supreme Court which is why I'm comfortable with Roberts. But I am enjoying watching your sisterhood whine, cry and carry on so."
I wish I could say the same for your comments. But I am not entertained by your little insults. I wish you the best of luck, and a long life.
Yes, Anita Hill would say the same thing. The histrionics are fun to watch.
In his confirmation testimony two years ago, Roberts said that judges should be "ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning law, not shaping policy," and added: "That means that judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose their preferences from the bench."
I agree with you that he is an honorable man and that's one of the reasons I voted for him. But he is a globalist and he is very moderate IMHO.
I concede Scalia, but Thomas voted for pornography so that may be good that he is not Thomas.
Guilt by Association is a fallacy in which a person rejects a claim simply because it is pointed out that people she dislikes accept the claim. This sort of "reasoning" has the following form:
* People/person p does not like accept claim c.
* Therefore c is false.
Explanation
It is clear that sort of "reasoning" is fallacious.The fallacy draws its power from the fact that people do not like to be associated with people they dislike. Hence, if it is shown that a person shares a belief with people he dislikes he might be influenced into rejecting that belief. In such cases the person will be rejecting the claim based on how he thinks or feels about the people who hold it and because he does not want to be associated with such people. Of course, the fact that someone does not want to be associated with people she dislikes does not justify the rejection of any claim. For example, most wicked and terrible people accept that the earth revolves around the sun and that lead is heavier than helium. No sane person would reject these claims simply because this would put them in the company of people they dislike (or even hate).
Got me what he is. He could be a phenomenal justice. But I can't tell from his record, which really doesn't provide much in the way of his personal opinions on constitutional interpretation.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.