Thursday, July 21, 2005

Wasting Oxygen On Roberts

John Roberts is what he is. His bio is all over the web, and his cases (however many or few there may be), can be read in many different ways. But I warn all of you...this is divination. Roberts has been a judge for two years, but that's barely enough time for him to get his feet wet. What I mean by that, is that his quality--his staying power as an originalist--is an unknown.

And this is something which had better have crossed the President's mind.

Some of the most destructive nominees to the Supreme Court have been made by Republicans. Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, David Souter, and to a degree (the magnitude of which remains to be seen) Anthony Kennedy. They were Republicans who turned reliably left and activist. Ask someone on the left and they'll tell you that these justices "grew" in office. Indeed. "Once you start down the dark path, forever will it dominate your destiny..."

They all fell for the contorted view that it was the place of the courts to do the job of the legislature--to "expand" or even wholly rewrite the law. Where or why they went liberal I do not know, unless they wanted to read their own press. Earl Warren was the author of Miranda v. Arizona from which, while doing away with confessions which were the product of coercion, also hampered the police from receiving freely offered confessions which were not the product of interrogation, thus hampering the legitimate work of enforcement. But the most notable result of this unfortunate trend is the work of Justice Harry Blackmun. Blackmun wrote Roe v. Wade, the most controversial opinion of our time. It invented a right where none had existed before. At the time it was decided, the states were making their own decisions about that right, but through legal legerdemain, that power was stripped from them and forcibly crammed down American throats, as five people somehow found quarter for "reproductive rights" in the Framers' words. And today, Justice Stevens has established himself as the head of the Court's left wing. Souter, a reliable liberal, is right behind him, holding the Court as a bastion of legal revisionism based upon the justices' own policy preferences.

Conversely, the Democrats' appointments have been fairly reliable. Thurgood Marshall never met a liberal cause he didn't support on the court. He was all liberal politics. No surprises there. Felix Frankfurter was one of the founding members of the ACLU, and the first member of that organization on the Supreme Court. When appointed by Franklin Roosevelt, he predictably went left and stayed there. Ruth Bader Ginsburg, an ACLU counsel is a reliable liberal vote regardless of what the law says. This shocked nobody. Their presence on the Court hasn't been a good thing, but likewise, their qualities were known and very nearly guaranteed.

So Bush's appointment of John Roberts carries with it a number of uncertainties. People are trying to read the tea leaves of his resume and opinions. They may portend much. I am encouraged by his Federalist Society membership. And then again, they can be completely useless. We thought Souter was a conservative...

Fortunately or otherwise, we won't know the outcome until he is a few years out in the Court. I am encouraged by his past. I am discouraged by what I have seen Republican Justices become.


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