14 / September
14 / September
Roberts Testimony: The Ugly

Senate liberals are obsessed with abortion. All other issues combined don't matter as much as that one issue: the right of a woman to kill her unborn child. Arlen Specter queried: "Would you think that Roe might be a super-duper precedent?" Joe Biden asked, "Do you think there's a liberty right of privacy that extends to women in the Constitution?" Diane Feinstein questioned: "[I]n its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe.... In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable. Do you agree with this conclusion?" And on it went.

Confirmation hearings now resemble political campaigns, where judges are expected to make promises in exchange for votes. But like all good candidates, the nominee seeks to appear all things to all people. So he, as John Roberts did Monday, shuts his mouth. Why should he open it? To please the Senate liberals, any judge who doesn't believe the Constitution contains a right to abortion has to lie. Either he lies now by saying he believes Roe v. Wade based on sound jurisprudence, or he lies later by agreeing that the Constitution says what it plainly does not. Either way, the process, like politics itself, can have the effect of making honest men dishonest. Better say nothing, the nominee reasons, and so he does.

But why save this silent approach for hearings? Nominees would be wise to stay silent on all strictly political questions as judges. Political questions, after all, are for the polis to speak on, not nine robed lawyers. John Roberts's ability to stay silent on issues where his voice--the judicial voice--does not speak authoritatively will largely determine his success or failure in staying loyal to the Constitution, federalism, and republican government.

Abortion, sodomy, capital punishment, medical marijuana, euthanasia, and other hot-button topics are for voters, not judges, to decide. When you politicize the judiciary--when you transform political questions decided by electorates into legal ones decided by judges--you necessarily politicize judicial confirmation hearings. The C-SPAN-circus the we regretfully watch is a natural outcome of this unhealthy development. How to change the ugly tone, the evasions, and the fanaticism? The judiciary must cease acting as a superlegislature and start acting as a judiciary.

posted at 12:04 AM

And the Legislature must start acting as a legislative body, and the Executive as an executive. That is, if each arm of govt was jealous of its proper power and we actually had divided govt instead of a tyrannical collusion (that the anti-federalists warned about) then the political tone would change. However, the Legislature has found it much more amenable to their political tenure and electability to foist decisions on politically vexing questions of on the courts (abortion, gay marriage) and the president (war, economy).

For judges to act like judges I am suggesting that Senators and reps must act like lawmakers. Therefore they must impeach and remove judges who act injudiciously as well as legislate contentious issues and make them unreviewable, if need be, to restrain the courts.

Posted by: Brian on September 14, 2005 11:38 AM

This posts states that "hot-button topics are for the voters, not judges, to decide." This is mistaken. If there is a serious constitutional dispute (as there is over a right to privacy) then only the courts can decide it. A constitutional issue doesn't stop being a constitutional issue just because it becomes a political issue. I believe in fidelity to the constitution, and that fidelity demands that we respect the Supreme Court's interpretations.

Posted by: Matt Mulligan on September 15, 2005 09:14 PM
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