Thursday, July 28, 2005

Roberts - Neither A Conservative Nor Liberal Be

Conservatives could end up being John Roberts' worst enemies.

Ann Coulter has already said that she does not know just how conservative Judge Roberts will be, and as a result is withholding her support. Similarly, Sen. Sam Brownback (R-KS) one of the more conservative members of the Senate, says he needs plenty more information on Roberts before he can support his nomination. they are just a few of the many who are right of center, asking just how conservative the judge will be. Which is just the inquiry conservatives must avoid.

He may indeed be conservative. Or he may be pro-choice. These considerations are largely irrelevant. Our inquiry needs to be his judicial philosophy, meaning what does he believe about the Constitution and laws of the United States and the roles of judges? Is the original intent of the Framers to be derived from the Constitution or are more modern political meanings to be put into them? And are judges mere interpreters who ensures that the laws keep with the documents that form our social contract (the Constitution) or do they also have the power to alter the meaning of statutes and the Constitution itself?

So I'll offer a fairly daring opinion:

We don't want a justice who is going to claim to be a "conservative". If we do, we do the same things the Dems do when they seek out people like Ruth Bader Ginsburg and Stephen Breyer. They are both reliable liberals who legislate their beliefs from the bench. As such, that makes them unfit. And it makes their rulings unfair, because a judge who refuses to apply applicable law to a case or creates or strikes laws based upon their own political beliefs, changes the playing field underneath the players in the middle of the game.

If laws are changed for political reasons (as opposed to reasonable Constitutional grounds which create no new legal standards), people have no notice of the behaviors which society expects of them. Partial birth abortion prohibitions are stricken because they make no provision for the health of the mother. But "health of the mother" is not a Constitutional standard--it is one borne of feminist politics and a lay perception about medicine. The Roe discussion of trimesters was equally extra legal. Somebody just thought it was "fair". And Plessy v. Ferguson, a decision based in Jim Crow politics said, essentially, that the 14th Amendment didn't really matter if you were black, because the separate accommodations were "equal".

But a judge who refuses to inject his or her own beliefs into their decision of others' cases, but rather applies all of the applicable law to the situations before them, whether they agree with the law or find its drafting to be inartful, is doing a public service.

And insisting upon a conservative as opposed to an originalist justice may work a disaster in the end. Conservatives can be political hacks like anyone else with no respect for the law. And after years on the bench, may make the grave error of reading their own press and decide to be "generous" to the other side. See David Souter--widely believed, and with good reason, to be a conservative, who is a reliable liberal activist.

An originalist feels no allegiance to anything but the law itself, to which there is only one side.

I'd love to see Roe overturned. I'd love to see all 50 state legislatures take up the matter. I'd love to see Roper (states cannot use death penalty for juvenile murderers) and Lawrence (sodomy cannot be outlawed by states) overturned.

But I don't want politics making that decision. I want it to be on the law or through the Congress. Because many of the left's most dear policies are the result of judicial activism. And though they cheated in the open to get them, I'd like the satisfaction of beating them fairly.

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