As I write, John Roberts is about to begin his tenure as the 17th Chief Justice of the U. S. Will he preside over what can be described as the “Roberts Court”? This remains to be seen, but the critical next step is for President Bush to solidify Roberts’ leadership with a bold appointment of another Justice in the same mold or, even better, one that is more of a “movement” natural law enthusiast similar to Clarence Thomas. Would this result in the use of the so-called “nuclear option” in order to break an expected Democratic filibuster? Maybe, but bring it on. If not now, when?
After the Roberts hearings and the confirmation vote, the bright dividing line in competing judicial philosophies is absolutely clear. The Senate Judiciary Committee Democrats on the left of this line were totally revealing on this point, as evidenced by their inquiries. Listen to Richard Durbin: “…beyond loyalty to the law, how do you view the law when it comes to expanding our personal freedom?” Beyond loyalty to the law, Sen. Durbin? Are you kidding? (I wish that had been Roberts’ response.) And Dianne Feinstein, in announcing her “no” vote, said she was disappointed when, with respect to the issues surrounding end of life decisions, she asked him how he “feels” as a husband, father, or son, and received only a “detached” answer. (Much like we should expect of a judge, Sen. Feinstein?). These inquiries epitomize the jurisprudence of the left and the captivity of the Democratic Party to it—total constitutional incoherence.
In fact, the most striking phenomenon throughout the Roberts confirmation hearing was the degree to which it seems that our entire public discourse is being driven by the fealty to complete personal autonomy and a generalized “right to privacy”, the concept that was created by the Supreme Court out of “the emanations and penumbras” of the Constitution, in other words, out of whole cloth, and which later drove the Roe v. Wade decision. As a result, as so well noted by Hadley Arkes in his book, Natural Rights and the Right to Choose, the Democratic Party has become the party of the courts, has completely prostituted itself to the privacy/abortion lobby, and demands that the judiciary continue to alienate itself from a central mission of the jurisprudence of a republic—the protection of human life.
As a follow up to one of Sen. Durbin’s questions on loyalty to the law, Roberts made an instructive statement. He said that he had been asked, “Are you going to be on the side of the little guy?”, and his answer was, in effect, that whether the little guy or the big guy wins a case will depend on which one the Constitution says should win, because his loyalty is to the Constitution. This is a refreshingly direct affront to the philosophy of John Rawls and his A Theory of Justice, the liberal “bible” of distributive justice for almost forty years. You want to know whether John Roberts will preside over a “Roberts Court”? He will if he has a sustained majority on the Court for the point of view embodied in his answers to Durbin, Feinstein, Schumer, et al, and this is why it becomes even more imperative that Bush follow up boldly on this once in a lifetime opportunity to transform our jurisprudence.
