The Roberts Hearings

I haven't watched any of the hearings but have listened to them on the radio, and followed the various blogs over at National Review. My job allows me to listen to the radio much of the day, so I've got a fair idea as to what is going on. I could watch them on C-Span at night, but haven't the time or patience.

But for all of the time and energy that will be spent both in committee and on the floor of the Senate, the central issue is really quite simple. The Democrats, or liberals, I should say, are absolutely petrified that they are on the verge of loosing control of the Supreme Court.

Democrats have had the presidency for only 15 of the past 40 years. They control neither the House nor the Senate. They may well capture one or all three in coming years, but even this misses the point.

And that is so because for all the importance of controlling the presidency or congress, it is through the courts that liberals try to accomplish their goals. From gun control, to smoking, to quotas(er, "diversity"), to gay marriage, and now even to the Pledge of Allegiance, liberals have decided that getting judges to enact their agenda is better than trying to elect legislators.

And you can see why they would think so. Convincing the public that you are right is so time consuming and expensive. Legislators and governors who enact unpopular laws can be voted out. No, far better to circumvent representative government with a coterie of philosopher-kings. Socrates would have been proud.

Do I exagerate? I think not. Consider gun control. Liberals have just about given up on persuading legislatures, whether they be state or congress, from enacting serious gun control legislation. In fact, the trend across the country is in the other direction. State after state has been passing "right to carry" laws, which relieve the citizen of having to go before a temperamental judge who may or may not grant a license depending on personal whim. Congress let provisions of the Brady Bill die (which reminds me that I need to get a flash suppressor for my AR-15. They had been banned by that stupid law). Bill Clinton himself gave credit to the NRA for Democrat losses in the congress during his term in office.

Enraged, liberals changed tactics. The new game is to sue gun manufacturers, usually under "product liability" statutes. Fortunately, most attempts have been squashed either by the courts themselves, or by legislatures passing laws absolving manufactures of "abusive lawsuits".

We see a similar tactic with tobacco products. We see lawsuit after lawsuit for more and more money, all under the guise of "product liability" or some such similar claim.

In both cases, liberals pursue their agenda through the wrong forum. The correct thing to do would be to simply come out and say "we think smoking/guns/fill-in-the-blank ought to be legal/illegal, and we're introducing legislation to make it so. " But rarely is this the case.

So it was the unusual news story that told us that the California legislature had passed a bill to make "gay marriage" legal. Most Democrat politicians in the country are caught between a rock and a hard place with this issue. On the one hand, they've got their gay consituency telling them that gay marriage is their number 1 issue. On the other, they've got their much larger black and labor union constituency telling them "no way." The courts provide the perfect answer. They simply put liberal judges in place, and hope they pass gay marriage laws (excuse me, "reinterpret the constitution"). The politicians can then say to the blacks and union members "hey, don't look at me", while it's wink wink to the gays.

Back to the Senate

So for three days in a row John Roberts has been questioned by various senators. Interestingly enough, before about 1955 nominees to the Court didn't even apear before the Senate. In fact, they refused to go, considering it beneath their dignity to subject themselves to questioning to a bunch of political hacks. And from what I've seen (or rather, heard), they had a point.

For all their pontificating, and attempts by some (Shumer, Biden) to show us that they too know the law ("really, we do!"), it all comes down to one issue. There is only one thing they want to know, because it is at the heart of modern liberalism.

How will he vote on abortion?

I swear I think Roberts could say that he'd order puppies executed and old ladies thrown into the street from their nursing homes and the Democrats wouldn't care.

"Just please, oh please, don't touch Roe v Wade"

Roberts, of course, has adopted what has become known as "the Ginsburg standard". Ruth Bader Ginsberg, Clinton's 1993 nominee, told senators that

“I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”

How inconvenient her words are to some now. I listened today as Roberts refused to answer questions about how he might rule, with Democrat senators such as Shumer growing more and more frustrated.

Biden demanded that Roberts tell him his opinion on specific issues, saying that because senatorial candidates must tell the public their opinion on various issues, judicial candidates should do likewise. Roberts instructed Biden that judges aren't up for reelection, so no, the analogy does not work.

Kennedy said that he was - hold your breath - "somewhat disappointed" in Roberts.

Feinstein, displaying the worst in tribalist thinking, asked a series of "woman questions": Prefacing a few questions with "As a woman..." and "As a man, Judge Roberts, how do you feel..."

Shumer tried to trip him up on the "Ginsburg standard". Biden interupted him repeatedly, at several points causing Chairman Arlen Specter to intervene on Roberts' behalf. But they failed.

The Meaning of "Qualified"

John Roberts is a qualified, in the academic sense, as anyone ever has been. By all historical precident, he should be confirmed.

Ruth Bader Ginsberg was confirmed in 1993 by a vote of 96-3. Scalia and Renquist were confirmed by overwhelming margins, Thomas famously less so.

Ginsberg specifically told everyone that she believed in a womans "right" to an abortion. Yet had Republicans voted against her they would have accused of all sorts of things, from setting a "litmus test" to being "anti-woman."

Roberts will be confirmed, although probably with only 10-20 Democrat votes in the full Senate. The committee vote will be straight party line, 10-8.

If this confirmation looks difficult, folks, get ready for the next one. It's going to be bloody. The Democrats are losing their last branch of government, and won't go down without a fight.

Thursday - A New Line of Attack

I'm not going to do daily updates, but today several Democrats revealed more clearly their judicial philosophy, which is that they don't care one whit what the constitution says, they just want judges to be another legislature. This ties into my thesis above so I'll comment a bit on it.

The Democrats on the Judiciary Committee that they're up against a legal mind far superior to any of theirs, so they've stopped trying to discuss anything serious.

The new tactic is to claim that Roberts doesn't have the "heart" or "compassion" to be a Supreme Court justice. Here's Schumer:

First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

Adding to this line of attack, Kennedy asked him "whether he could ensure the rights of the nation's less fortunate".

This would be self-parody if the issues weren't so serious.

Let me make this real simple.

Judges should follow the constitution, and look to precident for guidance. Sometimes this will mean that the poor and downtrodden win, and sometimes it will not. Sometimes the rich and powerful will, and should, win. Judges should not care one whit about the circumstances of a petitioner's economic situation, and they certainly should not try and "empathize with the less fortunate".

But to liberals, if the constitution or law doesn't say what you want it to say, well, just invent a "penumbra".