Dole Blows It Again

This time the bad news comes from the northern Plains. North Dakota Governor John Hoeven has opted out of a Senate bid. For those of you keeping score, this is the tenth missed opportunity for Senator Dole and by far the biggest miss of the cycle. Had he challenged Senator Conrad, Hoeven would have offered the GOP its best chance to capture a Senate seat. That distinction now goes to Rep. Mark Kennedy.

Some have argued that Sen. Allen missed his share of opportunities as well. Let's compare:

Allen 2004 (6-3-2)

1. Arkansas - failed to get Tim Hutchinson
2. Colorado - failed to get Owens, partly thanks to his divorce; got behind Coors when he should've backed Schaffer
3. Florida - missed Jeb, got Martinez; won the seat
4. Georgia - got his first pick, Rep. Johnny Isakson; won the seat
5. Nevada - missed Rep. Jim Gibbons
6. North Carolina - got Burr; won the seat
7. North Dakota - okay, Allen blew this one too
8. Oklahoma - got a strong candidate, Humphreys who was defeated by my man in the primary; Coburn won the general
9. South Carolina - got his first pick, DeMint; won the seat
10. South Dakota - got his first pick, Thune; won the seat
11. Washington - missed Jennifer Dunn, but got Rep. Nethercutt

Dole 2006 (2-8-1)

1. Florida - failed to get Gov. Bush; failed to get a second-tier challenger; ended up with Rep. Katherine Harris, who has consistently trailed miserably against Sen. Nelson
2. Maryland - may have gotten Lt. Gov. Michael Steele, who has an exploratory committee, but has not committed to the race
3. Michigan - missed Jane Abraham, Rep. Candice Miller, and Rep. Mike Rogers; Stabenow leads GOP front-runner Rev. Keith Butler by 20+
4. Minnesota - got Rep. Kennedy, who was running with or without NRSC recruitment
5. Nebraska - missed Reps. Fortenberry, Osborne, and Terry and acting Governor Dave Heineman; Nelson's now a heavy favorite against a motley crew of third-tier candidates
6. New Mexico - missed Reps. Pearce and Wilson; Bingaman will coast to reelection
7. New York - Rudy? No ; okay, perhaps this one's not on her
8. North Dakota - Hoeven passes; Conrad wins without trying
9. Tennessee - No shortage of candidates here, but Dole's done nothing by way of clearing the field for the strongest candidate
10. Washington - No Rossi, no Dunn, no chance, no way
11. West Virginia - still a shot at liberal Rep. Capito; should've recruited former WVU basketball coach Gale Catlett or rising star Secretary of State Betty Ireland from the start; if Capito had the stomach for it, she'd have gotten in already. Oh by the way, there's nothing like giving away the values issues, as Capito would do, in a state that is economically closer to Sen. KKK
12. Wisconsin - No Thompson, no Ryan, no chance

On fundraising, her other primary responsibility, Sen. Dole is now begging her colleagues to contribute more because she failed to deliver the message to Party "Leadership" that failure to deliver the votes on the constitutional option would be disastrous for fundraising.

The election of Sen. Dole was one of the worst things this Congress has done, and that says a lot considering just how inept the GOP "Leadership" has been. Perhaps, though, more candidates would be willing to make the runs if there was at least some promise of progress. Sadly, though, Republicans have failed repeatedly to do anything worthwhile.

The one promising thing about the 2006 races is that the challengers running and the incumbents who will lose offer the opportunity for conservatives to take control of the caucus. The best case scenario involves former Rep. Ed Bryant, Rep. Mark Kennedy, Mayor Steve Laffey, Rep. Chip Pickering, State Rep. Urquhart replacing Senators Chafee, Frist, Hatch, Lott, and Mudd. If that happens, the 2006 cycle will be a rousing success. Even so, one cannot help but wonder what could have been had Sen. Dole been half-way competent.

What is a Win?

As we begin getting used to the words "Chief Justice Roberts", many are focusing on the next nominee, the size of the victory, or what Roberts' impact on the Court will be. Since that ground is well-covered over at RedState.org and ConfirmThem.com , Jayson at Polipundit looks at the confirmation from a different angle. (I have previously discussed this perspective here).

As I have said, I do not think that Judge John Roberts should have been confirmed. I consider it a loss. Not a single Senator shared my view. Essentially, I lost 100-0. Left wing groups who opposed Judge Roberts for other reasons also lost. Sure, it was closer - not close, but closer - 78-22. I would have considered "victory" the defeat of the nomination. They would have considered "victory" a majority of Democrats voting against confirmation. Well, that didn't work so well either. Now, as Jayson pointed out, the National Abortion Federation is claiming post facto that having more than twenty Senators vote against Roberts constitutes some sort of victory.

Far from an isolated incident, this is becoming the norm for the left. First, Sen. Schumer said Democrats will try to make progress in the Senate in '06, not take it back. Then, the lefty loonies said that it'd be a win for Hackett to come close in the OH-2 Special election. Now this.

So what does this mean? The left is defeated. They are done, finished, completed, finito. Unless...

Unless the Republicans become like them. Conservatives have beaten liberals left, right, and sideways since 1996. We are in a position to finish them off by taking back the Courts, the last remnant of those whose thirst for power supercedes their desire for the rule of law rather than the rule of men and whose childish desire to do anything any time supercedes any sence of values. Now is not the time to play not to lose.

Let's play for the win, not for overtime.

What do these men have in common?

We'll soon find out. With his first selection, the President went with an uninspired choice. The business community hand-picked John Roberts. Social conservatives went along, most did so reluctantly. During his testimony, Roberts made it abundantly clear that he did not fulfill the President's promise that he would select Justices in the mold of Clarence Thomas and Antonin Scalia. In particular, he endorsed substantive due process, which, loosely translated, means, "The Constitution is whatever the Supreme Court says it is." Most are convinced that John Roberts will not be willing to overturn Roe, and he went so far as to say that he supports the conclusion in Griswold, a decision that finds about as much support in the Constitution as Osama bin Laden finds in the Pentagon.

Let's review. In 1994, the Republicans took over both houses of Congress. In 2000, a Republican President was elected. For three of the last five years, Republicans controlled both houses of Congress and the White House.

• Abortion - Partial-birth abortion ban, Born Alive Infant Protection Act, Unborn Victims of Violence Act, Mexico City Policy. Nice, but only one of the above has actually saved any lives, and none of them has saved a single American child.
• Education - The Congress gutted the single most important part of the President's plan - school choice.
• Immigration - Nothing has been done to stem the tide of illegal immigration. The President has promoted amnesty.
• Marriage - States are increasingly recognizing gay marriages. The President has voiced support for an amendment to defend marriage, but has done nothing about it. Even many Republicans oppose a Defense of Marriage Amendment.
• Size of Government - Since Republicans took over Congress, not a single government department or program has been shut down. Knowing this, erstwhile House Majority Leader Tom DeLay recently said that we have cut all the fat that can be cut from the federal budget.
• Taxes - Some temporary cuts were enacted. No structural reform.
• War on Terror - There has been major progress. Syria, Iran, and North Korea all have or are continuing to develop nuclear weapons. Osama bin Laden is still at large. Neo-con themes have been substituted for legitimate national security reasons for invading Iraq.
• Welfare - This is the only domestic area in which there actually has been progress, as limitations were put on the number of years and consecutive months that people could receive benefits. It was enacted nearly a decade ago.

Push has come to shove. Conservatives aren't happy about the first pick. Short of someone whose record will not require private investigators to discern their views of the role of judges and the Constitution, the President will have done to conservatives the exact same thing as his father. We have already learned from Roberts and Souter that the Bush family cannot be trusted. Now, it is time to see just how bad they are.

Mark Levin put it well when he said simply, "We win, we pick. You win, you pick." The President's first selection suggests that he is of the mind, "I win, I pick." If that is going to be the attitude of Republican Presidents, then they can win on their own. The rest of us can take up golf, or skiing, or whatever else we can think of with our newly found free time. And, oh by the way, the President can kiss the rest of his agenda goodbye when his base leaves. His approval numbers have consistently bottomed out at 40%. That's his base. If the President blows this pick, if we even need to discuss whether the President blew this pick, the bottom will fall out. His numbers will plummet and he will be the lame duck many expected him to be.

We want the Court, and we want it now. So, Mr. President, Senator Frist, make it happen! Twist arms. Break them if necessary! Cut off all funding to the states of any Republican Senator who opposes the nominee. Sen. Dole, don't give a dime to support any Republican who does anything but sing the praises of the new nominee. Conservatives, strip Arlen Specter of his chairmanship at first opportunity if he doesn't serve as a battering ram to get the nominee through the Senate. If you blow this, kiss your base, and your majorities, goodbye.

What if There Was an Election and Nobody Came?

That just might happen in the Buckeye State next November. It now appears that Paul Hackett will challenge Sen. Mike DeWine (RINO-OH) in the Senate race. The Senate race will play second fiddle to a Gubernatorial race in which the GOP will have to find a way to convince voters to look past an administration that could take an ethics lesson from Chicago Mayor Daley. Making DeWine's life more difficult is the fact that the NRA will likely take a close look at his challenger, seeing an opportunity to punish the disobedient Republican by taking the rare step of endorsing a Democrat. DeWine has further aggravated his conservative base on gay marriage, abortion, and judicial filibusters.

For his part, Hackett will have a difficult time capitalizing on DeWine's weakness. If voters judge politicians by the friends they keep, making Hackett look like a modern version of Karl Marx should be an easy task for the GOP. Ohio is not Alabama, but it's not Vermont either, and seeing a candidate who doesn't even pretend to share their values might inspire as many people to come out to support DeWine as it does himself.

There are slim pickings for Ohio voters next year, unless former Rep. Bob McEwen launches a primary challenge. If he does so, he could inject some much needed enthusiasm to the vibrant conservative base in Ohio. If McEwen enters and wins the primary, there is a very good chance that Ohio will send a Republican back to Washington. If not, the Senate election will pretty much come down to which candidate has more relatives who are willing to vote for him in the state.

Gale Force Winds?

Robert Novak reports that former West Virginia basketball coach Gale Catlett is considering a run against Sen. Robert KKK Byrd if Rep. Shelley Moore-Capito chickens out. For months, reports have shown Capito doing the hokey pokey. A recent poll showed Byrd widening his lead in a hypothetical match-up. Rather than take the risk of challenging Byrd, Capito is likely to opt out of the race, run for reelection, and seek Sen. Jay Rockefeller's seat should he retire, as many expect.

Catlett is the winningest coach in West Virginia basketball history and enjoys statewide name recognition. Rumors began last month about a possible bid, and Catlett has shown an interest in politics for some time. Last August, Catlett spoke at a rally for President Bush in which he said, "Thank God we have a President whose life is guided by Christian principles." While little is known of Catlett's policy positions, this suggests that he would be able to do at least one thing that Rep. Capito could not: rally the base. Conservatives going into 2006 will likely be disappointed by the President's Supreme Court picks, so it will require candidates willing to campaign on pro-life, pro-marriage platforms to turn out voters who could be less inclined to show up at the polls.

One of the most intriuging stories of Catlett involves his retirement. In 2002, Catlett resigned after his team's humiliating performance against Virginia Tech, saying, "It is obvious that our players did not play with any understanding of basketball. It is obvious that our players did not play with spirit and they did not care what shirt they wore. It is perplexing to me. There is no pride." Those words could easily be coming out of the mouthes of Senator Tom Coburn regarding his Republican colleagues. If Catlett's words are reflective of his character, then he would be a welcome addition to the Republican caucus.

KKK remains the odds-on favorite in the race, but Catlett could give him a run for his money. Byrd is slowly doing what Sen. Bunning did quickly last year, i.e. fall apart mentally before the voters. If Catlett manages to shine a spotlight on Byrd's decline without appearing to attack him while at the same time rallying the base, lightning just might strike in the Mountain state.

Irish Backs Go Marching By

Today, the Fighting Irish returned to the form of the first two games. Led by Darius Walker, who has rushed for over 100 yards in all four games this year, the Irish backfield racked up 243 yards rushing in yet another dominant performance en route to a 36-17 route of former Irish coach Ty Willingham's Washington Huskies. The Irish defense, true to the form of the first two games, bent but did not break. Like last week, the Irish created two turnovers inside the 5 yard line and gave up only three points before ceding 14 points in garbage time. The one weak spot was the kicking game. Though DJ Fitzpatrick went 3/3 on field goals, two bad snaps led to a missed extra point and a turnover on downs because the holder couldn't put the ball down for a FG. Those problems will surely be fixed by coach Weis before next week's game against Purdue.

Senate Scandals

This week, two members of the Senate Leadership, one in each party, found themselves at the center of serious investigations because of unethical, perhaps even illegal, activity. First, two staffers at the DSCC, run by Sen. Chuck Schumer, were found to have illegally obtained the credit report of Maryland Lt. Gov. and potential Senate candidate Michael Steele. It is obvious that there were illegalities in the organization, but the question is whether Sen. Schumer had any knowledge of them. Since taking the helm at the DSCC, Schumer has had a take no prisoners/win at all costs approach that has even aggravated members of his own Party. Now, it appears that such an attitude has extended to the Senate Committee. The two staffers involved in the criminal act resigned. You can take it to the bank, though, that both will reap the benefits of their activities with perks given them by the Democrat establishment. Regardless of whether the credit reports themselves are used by the Democrats, they surely have already received whatever benefits they could have desired from the information simply by having seen them. The leads are all there. Expect to hear more about the probe in the coming weeks. If it is proven that Sen. Schumer was involved in any way - and there is as yet no evidence that he was - he will soon change careers and go into the license plate business.

Sen. Bill Frist, the Senate Majority "Leader", has also found himself at the center of a probe, but this one goes much more directly to the member. In 2002, Frist dumped stock in the family company HCA Inc., which was founded by his brother and father four decades ago. Just two weeks later, the stock dropped 9%. In January of 2003, Frist denied knowing that he held stock in the company, but he had been informed of this ownership several times prior to the sale. At the very least, there is sufficient evidence that there were improprieties in Frist's activity. At worst, Senator Frist engaged in insider trading, a federal crime for which he should not be exempt from prosecution simply because he is a United States Senator.

Frist has been an ineffective leader from the get-go. President Bush's social security reform plan has fallen flat. Frist failed to deliver the votes on the constitutional option, showing an incredible lack of influence over his Senate colleagues. Just before the August recess, Frist flopped on stem-cell research, abandoning the Party base because he felt threatened by StemPAC, who began running ads against him in New Hampshire. Now, the White House is talking about nominating a nominee without a track record for the second time because they cannot rely on Senator Frist to deliver the votes necessary to confirm a distinguished jurist like Judge Janice Rogers Brown. This scandal will not help.

RedState said it earlier in the week. I will say it now. Senator Frist needs to step aside from the "Leadership" because of his ineffectiveness. Depending on what actually transpired with the HCA stock, it may also be for the best that he resign from the Senate. Conservatives will stick by leaders who stick by us, including with regard to ethical conduct. That is why we have rallied for House Majority Leader DeLay. That is why there will be no such rallying around Bill Frist.

Written Answers Just As Bad

Fortunately for all involved, one of Sen. Dianne Feinstein's attorneys is smarter than the clowns on the Senate Judiciary Committee. During the hearings, Senators inquired as to Judge Roberts' views on privacy. In particular, Roberts said that he agreed with the conclusion in Griswold but refused to answer questions on abortion. Sadly, not one of the best and brightest legal minds in the country picked up on the obvious opportunity to ask how Judge Roberts would reach such a conclusion without the help of "penumbras and emanations". One of the Senator's attorneys picked up on this and Sen. Feinstein included the question in her written questions. Not surprisingly, Judge Roberts justified his conclusion by adopting the theory of "substantive" due process. Now that he has articulated such a position, it is clearer than ever that he simply does not belong on the Supreme Court. (Pages 18 & 19)

As I argued last week, "penumbras and emanations" and substantive due process pose the same problem. In both cases, judges veer from the document by which they are supposed to be bound. There is simply no disciplined way to go from the Constitution to a general right to privacy, marital or otherwise. If the Founding Fathers wanted it in the Constitution, they would have put it there. If it is so non-controversial today, then supporters should propose adding it to the Constitution. The Supreme Court had no authority to do so when it ruled in Griswold and it has not since gained that authority.

Words matter, but actions matter more. Judge Roberts' support for the conclusion in Griswold illustrates the fact that he does not understand the humility that he so frequently mentions. Humility in the judiciary is first and foremost a personal principle. It is an understanding that he himself must adhere to the text of the Constitution. Beyond that, though, humility in the judiciary requires that judges understand that previous courts did not have the authority to depart from the Constitution either. This is to say that if a prior Supreme Court decision clearly departs from the Constitution, as Griswold does, judges must restore proper humility to the judiciary by ceding the authority that the Court usurped back to the entity or entities to which the Constitution gives that authority. Justices Scalia and Thomas understand this principle. President Bush broke his campaign promise by nominating a judge who does not. Hopefully Justice O'Connor's replacement will give this President the same .500 average that his father had. If not, there will be hell to pay in next year's elections.

Democrats Win 13-5

Today the Senate Judiciary Committee voted John Roberts out by a vote of 13-5. Every Republican voted for him, along with liberal Democrats Patrick Leahy, Herb Kohl, and Russ Feingold. Since then, several other Democrats have announced their support for his confirmation.

Sadly, among the Republicans on the Committee who voted for Judge Roberts are conservative stallwarts Sen. Sam Brownback and Dr. Tom Coburn. These two Senators, along with some others, made errors in judgment. In spite of some suggestions that Sen. Schumer has said that they expect Roberts to uphold Roe, it is hard to believe that these two men who have staked their careers on the protection of the unborn would now do an about face on something as important as the confirmation of the Chief Justice of the United States. Ralph Neas and Barry Lynn are throwing a fit, but the two would do so with any person nominated by a Republican President. Their standard is Stenberg, and anyone who does not swear a blood oath to it would face their oppositon.

Looking at the Democrats, Russ Feingold's vote in particular is illuminating. He has been discussed as a possible Presidential candidate, so this vote is extremely risky. If Judge Roberts votes to uphold Casey, Feingold will be viewed as a hero for appearing reasonable while firing a shot across the bow of the administration regarding the possible nomination of the best judge on any list. If not, Sen. Feingold's political career is dead.

Conservatives have lowered the bar with Roberts. Hopefully it can be raised to a standard that only the best can meet. If not, the Supreme Court is gone for good.

President Specter?

Last time I checked, Arlen Specter's 1995 run for the Presidency ended before the race began. Republicans rejected Specter nationally then, and Pennsylvania Republicans would've rejected Specter last year had the real President not given him CPR in the closing days of the primary campaign. Last November, conservatives once again attempted to limit the effects of the Specter poison to no avail.

Bafflingly, though, Sen. Specter has not learned his lesson. Rather than showing gratitude to the person who breathed life into him when there was none, he has picked up the nearest knife and used it to stab the President in the back. While one cannot help but appreciate Specter's willingness to go the extra mile by speaking with Injustice Sandra Day O'Connor about sticking around for another year, one can't help but wonder whether Specter understands the difference between being President and being Chairman of the Senate Judiciary Committee.

Conservatives should forever remember that the actual President saved Specter rather than killing him. As expected, Senator Specter has been nothing but trouble since he entered the Senate, and all the more since becoming Chairman. His most recent comments are not welcome, are not helpful, and are unbecoming of a United States Senator. Even Senate Democrats have not gone so far as to suggest that O'Connor should remain on the Court for another year. With friends like this, who needs enemies?

So what's the lesson to be learned here? Simply put, individuals who do not share conservative priorities should not appear on the ballot as Republicans. Some are less trouble than others, but anyone who does not share our values will eventually cause more trouble than they are worth. Democrats attacking the conservative agenda are one thing. Per the old Irish prayer, we know them by their limp. Never again should a non-conservative be put in a position of leadership. It is time for us to reclaim our Party and let the chips fall where they may. As President Reagan demonstrated, running on principle will help us not hurt us. George HW Bush taught us that when we run from principles, as cowtowing to Specter in any way would be, we lose. It is time for the GOP to put up. For Arlen Specter, it's time to shut up.

Doran Departs

Kelly Doran has departed the race for the Democrat nod for Senate and is running for Governor instead. I'd offer analysis, but Gary Miller has taken care of that.

Austin, We Have a Problem

When Bill Frist, Arlen Specter, and Chuck Schumer agree on something, only one thing is certain: it's not liberals who are getting the short end of the stick. So when Arlen Specter and Chuck Schumer signal that they'll vote to confirm Judge Roberts, it means that conservatives are once again getting taken for a ride. When Roberts was first nominated, conservatives had every reason to think that the President had kept his promise.

Then came the hearings. Judge Roberts ran circles around the Judiciary Committee, correcting Senators on misquotes and showing a command of the law. In the process, he left himself outs. Hopeful conservatives, some better informed than others, continue to have hope. Careful listeners emphasize that he committed himself to little on the issues that are likely to come before him on the Court. Unfortunately, though fully capable of doing so, Roberts does not seem the type who would engage in Clintonesque word games that allow him to escape from his comments like Harry Houdini once on the Court.

Fortunately, conservatives got an escape clause too. Senators Sam Brownback and Tom Coburn got the last two Republican seats on the Judiciary Committee during the reorganization of the Chamber. Now is the time to use our trump card. While it is too late to stop the Roberts juggernaut, a second Supreme Court nomination is just around the corner.

There is talk of several judges who do and do not have clear track records, who do and do not have overarching judicial philosophies. Judge Roberts clearly has neither a clear track record nor an overarching judicial philosophy. He said during his hearings that he does not consider the Court a place for ideologues. To the contrary, every Justice on the Court should be an ideologue. The difference between ideologues and non-ideologues is that ideologues have a methodology for viewing the matters that come before them while non-ideologues do whatever is convenient at the time. It is those who have no such approach that have done the legalistic gymnastics that have given us the status quo, or, as President Reagan put it, "the mess we're in".

Please take this opportunity to tell Senators Brownback and Coburn that any judge who lacks a consistent, textualist/originalist approach and a track record to back it up should be denied confirmation. Three of the last five Republican nominations, excluding Roberts, have proven busts. Looking at their records on the Court, one could be forgiven for forgetting to which party the Presidents who nominated them belonged. That must end now.

I remain somewhat hopeful that conservative doubts about Judge Roberts will be proven wrong, but the guessing game must end now.

Sure, We'll Compromise

According to Robert Novak, Senate Miority Leader Harry Reid has informed Senate Majority "Leader" Bill Frist that Senate Democrats are prepared to ignore the Constitution and filibuster the nomination of Judge Priscilla Owen should President Bush choose to nominate her for the Supreme Court seat being vacated by Injustice Sandra Day O'Connor. While I am generally not a fan of negotiating with an unreasonable minority, I'd be willing to make an exception in this case. If Senate Democrats are so convinced that Judge Owen is wrong for the Court, fine. President Bush should select Judge Janice Rogers Brown.

At first glance, it appears that Judge Owen would make a fine Supreme Court Justice. In fact, she may well. Unfortunately, though, the Roberts example shows us that no matter how steller a potential nominee may seem, what he or she really needs is a track record. To be sure, what there is of an Owen track record is excellent. I have little doubt that, if nominated and confirmed, Owen would be closer to Justice Scalia than Roberts. But the President owes us. If he wants us on his side in the face of Reid's filibusters, then he had better give us someone we will go to war, nuclear war, over. While there are certainly several excellent judges out there, this blogger will be disappointed with anyone other than than the brilliant, highly qualified, forthright Judge Janice Rogers Brown. Let's take the Democrats' threat to filibuster Judge Owen as a sign that they agree.

Michigan State 44, Notre Dame 41

It was a sad day in the house that Rockne built as the weakness in the Irish secondary was exposed for the first time this year. Michigan State QB Drew Stanton threw for 327 yards and three touchdowns on just 27 pass attempts. After falling behind by 21 in the third quarter, the Irish battled back to tie the game at 38 and send it into overtime. Charlie Weis' brilliant play calling and some help from Touchdown Jesus were enough for the Irish to dominate the last twenty minutes. Had freshman Asaph Schwapp not fumbled on the goalline (after scoring a touchdown, but the referee's blew the call), the Irish likely would have won in regulation. In the overtime, Michigan State brought the pressure that had caused problems for Brady Quinn all day, holding the Irish to a field goal. The final breakdown in the Irish defense allowed Jason Teague to scamper 19 yards for the game-ending touchdown. Brady Quinn's 487 passing yards and school-record five touchdown passes do not tell the tale of just how off he was. Opposing teams now know that he can be shaken by pressure. He repeatedly missed open receivers, and a pick-6 just after the half could have ended the game for all intents and purposes. Perhaps the biggest problem, though, is that the team has not yet been able to put together two good halves of football. While it might not be necessary next week, that will have to change as the schedule turns to Purdue, Southern California, and Tennessee. Fortunately, the tough Irish schedule means that the loss does not necessarily eliminate Irish hopes of going to the Rose Bowl. The strength of schedule means that running the table would likely be enough if there are not two undefeated teams at the end of the year. Weis woke up the echoes. Now, he must wake up the secondary.

A Conservative Alternative to Socialist Sanders?

Vermont's conservative announced Friday the formation of an exploratory committee to examine a bid for the seat being vacated by Jumpin Jim Jeffords. Should he enter the race, Lt. Gov. Brian Dubie will face IDX CEO James Tarrant in the Republican primary and, if he survives, socialist Rep. Bernie Sanders in the general election. Dubie won his reelection bid last year with 56% of the vote, as Vermont elects its Governor and Lt. Governor separately. Fairly popular within the state, Dubie has managed to build his reputation on issues of importance in Vermont, especially in the areas of education and healthcare.

The campaign will be a tough one, though, as Tarrant's personal fortune and Sanders' popularity pose two very formidable obstacles. Vermont's liberalism is a third. With the state's at-large House seat open, it is somewhat surprising to see Dubie instead take on one of the most popular politicians in the state. Dubie must have good eyes, because it appears to all the world that there really is not an opening here. Sanders, the House's lone "independent" (read "socialist"), fits Vermont's left-wing loonacy quite well. If Dubie, or Tarrant for that matter, is to win the seat, he will have to succeed in two areas. First, he must convince Green Mountain Staters that he is not an "extremist", Vermont's word for "moderate", the media's word for "conservative". This is no easy task in the state that elected Screaming Deanie. Second, he must make the case that Vermont will be much better off with a member of the majority. Dubie can successfully make this argument if he cites Ellsworth in every speech. Hopefully he'll do so. Even if both of these work, it's still tough to see Vermont sending a good conservative to Washington. Then again, perhaps they will see it as the only way to get rid of him.

Mr. President, You Owe Us

Few things are worse than being wrong. One of them is failing to correct the error. Hence, I will attempt to correct an error in judgment that I made when Judge Roberts was nominated and have reiterated since then. Judge Roberts has an excellent understanding of the "development" of constitutional law and various legal principles that have in the past been and are currently applied. He is a brilliant attorney and his integrity seems beyond reproach. (I say "seem" not because I have evidence to the contrary, but simply because I do not know him personally.) I have little doubt that he lives his life according to the teachings of the Church and that, if I knew him personally, I would hold him in the highest esteem.

Having said that, I have come to the conclusion that Judge Roberts is not the type of Justice who will serve to solve the most significant problem with the Court today, viz. the willingness of Justices to insert their personal views into their rulings regardless of whether those views are reflected in the Constitution. Earlier this week, I made the case that the conclusion of Griswold finds no grounding in the Constitution. Some have explained that Judge Roberts did not concur with the reasoning in the opinion and that he would instead reach the same conclusion by ruling the law unconstitutional according to the due process clause. Whether the decision is reached by the due process clause or "penumbras and emanations" is a distinction without a difference. In either case a Justice is injecting his own personal views into the Constitution when he creates a right or recognizes and authority that is not in the document. Regardless of how it is done, such an action crosses the line between applying the law and making policy.

Some have argued that he has left himself plenty of room to overturn Roe. Indeed he has. As important and destructive as the Roe decision was, there is a much larger issue in play here. The Court reached its decision in Roe using the same type of reasoning that it used to justify Casey and has subsequently used to create other rights that do not appear in the Constitution, such as the right not to have to have a moment of silence in a classroom for fear that somebody might use that moment to pray, and the right not to have students use the phrase "under God" in the Pledge of Allegiance. The Supreme Court is out of control, and the lower courts have taken the ball and run with it to insert new rights into the Constitution by judicial fiat.

Judge Roberts may well rule with Justices Scalia and Thomas on several issues, but his unwillingness to recognize the fact that the Constitution is actually a short, concrete and limited document suggests that he will be part of the problem rather than part of the solution. It is with tremendous disappointment that I must withdraw my earlier endorsement of Judge Roberts. While I continue to expect that he will be confirmed, I want to say now, for whatever it is worth, that I do not consider Judge Roberts worthy of the position of Chief Justice of the United States.

Taking this one step further, it seems that the President failed to keep his promise of nominating judges in the mold of Justices Scalia and Thomas. Judge Roberts is the "moderate" replacement for Justice O'Connor. While I reject the notion that there is something sacrosanct about the 'balance' of the Court, the President now owes conservatives big time. The next nominee must understand what Judge Roberts does not, and his or her record on this must be clear on this.

Mr. President, conservatives elected you. Without us, President Al Gore would be in his second term working with Majority Leader Daschle and Speaker Pelosi. If you fail to replace Justice O'Connor with someone who rejects not only Roe but also Griswold, then you should be prepared to lose several Senate seats next year and to live under yet another President Clinton. We elected you for a reason. You have disappointed us, in varying degrees, with your first Supreme Court nominee. Our dept is passed due. It is time to pay up with interest.

As a footnote, there are several leading conservative groups and individuals who have a different view of Judge Roberts. I respect their opinions and seriously considered them before withdrawing my endorsement of his confirmation. I do not doubt their integrity and look forward to working together with them to restore the principles of the authors of the Constitution. My difference with them on Judge Roberts is a difference in judgment, not principle. Further, I apologize for misleading you on Judge Roberts. I am humble enough to think and hope that in this case the opinions previously expressed on this blog were food for thought rather than determinative of your views. I hope that you will consider these thoughts as you have my previous musings on Judge Roberts and reach your own conclusion.

Lotts of Room for Improvement

Roll Call is reporting that Sen. Trent Lott (R-MS) is considering retirement, largely due to the fact that Hurricane Katrina destroyed his home. The circumstances surrounding Lott's consideration are sad, and I wish the Senator the best in rebuilding so that he can enjoy his waning years.

Having said that, Sen. Lott is far from a loyal Republican. He was forced out of the Leadership after an attempt to compliment Sen. Strom Thurmond. His attempt to flatter an old, great Senator were blown out of proportion. Republicans should have rallied behind him. Yet they should never have put him in the Leadership to begin with. After the 2000 election, Lott negotiated a power-sharing agreement with Sen. Tom Daschle with the Senate compromised of 50 Republicans and 50 Democrats. What Sen. Lott failed to realize is that the Vice President is the President of the Senate and casts the deciding vote when the Senate is split 50/50. Like Republicans now going along with the dog and pony show that is the Judiciary Committee hearings, Lott failed to use the power with which he was entrusted. Then, as now, Republicans were in the Majority and had every reason to use that power in full.

More recently, Lott released a book in which he criticized several of his colleagues. He is also thought to have been part of the Gang of 14 agreement even though he was not a signatory. Lott is the epitomy of the old guard who thinks that the Senate is supposed to be a chummy club of blue bloods who are willing to spend every dollar and sell out on every principle in order to get along rather than a legislative body. While the circumstances surrounding Lott's possible retirement are sad, there isn't a single conservative who will not be excited at the prospect of electing a more loyal, more conservative replacement.

I wish Senator Lott the best should he choose to retire, but I'd also suggest that he not let the door hit him in the rear end on his way out.

Answers Raise Questions

At the beginning of the week, I was optimistic about the prospect of a Chief Justice Roberts. Now I'm not so sure.

In criticizing Judge Roberts, it is important to point out that my concerns are strictly limited to his judicial philosophy. I have no reason at all to doubt his integrity or his intelligence. Over the last three days, he has clearly demonstrated a full understanding of the law and the humility that is appropriate for a man of his position. Some of his general approaches are encouraging, such as the idea that he is supposed to be an umpire rather than a player. Even so, his responses to several questions posed by Committee members are troubling. Yesterday I mentioned his responses with regard to the so-called "right to privacy". Today, additional concerns arose.

Oddly enough, the new concerns about Judge Roberts stem from his responses to some of Dr. Tom Coburn's questions. Like Coburn, I am not an attorney. At the same time, I do not believe that the Founders intended that the Constitution be a document that could only be read - and manipulated - by lawyers. The Constitution is a basic document, short and precise. To be sure, there are controversies that arise under it, as there are with pretty much any legal document. In deciding any case, though, Supreme Court Justices should rely primarily, if not exclusively, on the actual text of the document. It is the job of the Court to decide cases in controversy, and the tombs full of dicta are little more than arrogant attempts by the Court to usurp the power of the other branches and establish broad national policies that were supposed to be left to elected officials.

As Dr. Coburn pointed out, "Here's what you should base your decisions on; it's the Constitution of the United States and the laws." When asked about this, Roberts replied, "...I wouldn't accuse judges or justices who disagree with that, though, of violating their oath. I'd accuse them of getting it wrong on that point and I'd hope to sit down with them and debate it and reason about it..." Following this logic, Roberts does not believe that there is anything that Congress can do about judges who ignore the limitations of American law in favor of laws that have no place in the American legal system. Judges will make bad decisions, some more so than others, and it would be ludicrous to suggest that Congress could take action every time a judge makes a bad decision. At the same time, though, judges who use foreign law in their rulings engage in bad behavior because they demonstrate a lack of respect for the limitations of their position. Even if Judge Roberts himself would respect those limitations, it is problematic that he does not see such a breech of trust as a problem worthy of correction, including by impeachment. Such a reading suggests that there is no real check on the judiciary.

Further, Judge Roberts seems to adhere to a broad interpretation of the general welfare and necessary and proper clauses. While he cites Justice Madison's reading, the fact remains that Congressional powers are enumerated. Many of the laws enacted by Congress call to mind my days in parliamentary debate in college. There was a category of debate known as "loose-link" in which teams were required to tie in a theme, however loosely, to a predetermined case that they were going to propose. For example, the theme given might have been "Loose lips sink ships", and that theme could have been used to introduce a topic in the following way: "Loose lips sink ships, and so does a well-funded Navy. That is why we propose that we increase funding for the Navy for fiscal year 2004." The fact is that the operational reading of these clauses has led to an expansion of the federal government that far exceeds the authority granted thereto in Article I Section 8 of the Constitution. It was the early decisions of Madison that paved the way for the overexpansion of the federal government in much the same way that Roe paved the way for a series of subsequent decisions on the right to privacy that the authors of the Constitution never intended.

The point of these musings is not that Judge Roberts is a liberal by modern standards. Indeed, I remain hopeful that he will get many of the important cases that will come before him right. Instead, the nomination of Judge Roberts points to a much larger problem within the Republican Party and within modern jurisprudence on several issues. Republicans elected a President with more votes than any other candidate in history. Republicans have 55 Senate seats, albeit including many unreliable RINOs. There are several judges on federal appellate and state supreme courts who have a history of a more complete understanding of just how strict the restrictions placed upon the Court and the Congress are. I have already cited Judge Janice Rogers Brown as a primary example. It is time for the GOP, starting with the President, to say, "The emperor is buck naked," and end these games with the Democrats. President Bush and Majority "Leader" Frist must twist every arm necessary to bring real reform to the Supreme Court and the rest of the federal judiciary. If "Republicans" are unwilling to get in lock step on this central issue, then conservatives must work to defeat them in primaries. When they survive those primaries, their election should be of no consequence to conservatives.

If Republicans remain in power for the next half century - a big if, to be sure - and fail to restore the Constitution as written, that power will be futile. Now is the time that we must return to the letter of the Constitution. Failure to do so will mean that we have become a nation of men, not of laws, and the final death knell to the great experiment will sound.

A on Performance, B- on Law

Today, Judge Roberts deftly answered questions on issues ranging from abortion to terrorism before eighteen people who obviously know less about constitutional law than he does. Democrats, especially Sen. Biden, responded angrily when Roberts refused to make himself a political candidate by severely limiting the types of questions he would answer. Throughout the hearing, Roberts demonstrated a complete understanding of the Court's precedent and ably discussed the important principles of judicial practice, such as stare decisis. In many ways, his performance mirrored the real testimony, as opposed to the witch-hunt/desperation portion, of Clarence Thomas. Until Sen. Kohl questioned him, Roberts gave conservatives no reason to fret.

Unfortunately, though, he then dropped the ball. Through much of the hearing, Judge Roberts used the language of privacy within its proper context. He enumerated the specific privacies protected in the text of the Constitution without expanding the term to include "rights" that do not appear. Then, Roberts responded to a question by Senator Kohl saying, "I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that...." (To be fair to Judge Roberts, I am including the full text of the relevant part of the exchange below.)

THERE IS NO RIGHT TO MARITAL PRIVACY IN THE CONSTITUTION.

As I said, Judge Roberts had been answering the questions appropriately, if unwisely, by using the word "privacy" to describe many of the rights that are protected in the Constitution. The methodology used to go from the rights in the Constitution is the same type of "reasoning" that has been used to justify a federal government that far exceeds the enumerated powers in the Constitution. It's like saying, "Parents have a right to choose how their children are educated. Parents have a right to make decisions about their children's' health care. Thus, parents have rights. Since parents have rights, parents have the right to beat their children." It just doesn't work.

There is not now nor has there ever been a right to marital privacy in the Constitution. Whether it is wise for a state legislature to ban the use of contraception is a separate issue. The problem in Griswold is that the Supreme Court injected itself into an issue that, according to the Tenth Amendment, must be left to the states. Like many cases since, the decision in Griswold was an exercise in raw judicial power. It paved the way for the Court to usurp power that properly belongs to legislatures, from abortion to gay rights to affirmative action to environmental regulation. Judges are not supposed to be policy makers, and, the rest of his testimony not withstanding, it appears that Judge Roberts at worst fails to understand this principle and at best has a flawed understanding thereof.

The Supreme Court, according to the Constitution, is supposed to decide "cases in controversy". This means that its rulings are supposed to deal with particular applications of particular laws. Whether laws themselves are constitutional is a determination that must be left to elected officials who, like judges, are sworn to support and defend the Constitution. To be sure, Congress has far exceeded its enumerated powers. This is a serious problem for which the only solution is the election of officials who appreciate the restraints placed on the legislature by the Constitution better than those currently in power do. Even so, it is ludicrous to suggest that the Supreme Court has magical powers by which it has a much better ability to understand the Constitution than do the other branches. I hope that Republican Presidents, including this one, will start to nominate men and women who have a firmer understanding and appreciation for the limits of the authority of the Supreme Court.



KOHL: All right. Judge, do you believe that reasonable people can disagree on Roe v. Wade? Regardless of what you think of the decision, do you believe that there is an intellectually honest approach on the other side that is worth respecting?
ROBERTS: I certainly agree that reasonable people can disagree about that decision. Yes.
KOHL: And you do, obviously, respect people on the other side of the issue? ROBERTS: Yes.
KOHL: In Rust v. Sullivan, as deputy solicitor general, you signed brief in which you wrote, and I quote, The court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure or history of the Constitution, unquote.
So does this quote jibe with your statement that you understand that reasonable people can disagree?
ROBERTS: Well, I think so, Senator. The position that you're reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.
ROBERTS: And we were reiterating that position. This was before the Supreme Court issued its decision in Casey. That was the view of the administration and the conclusion.
I don't think there's anything in there that suggests we think or thought that anybody at that time who disagreed was unreasonable. That was our legal position. The other side's was obviously presented in those cases.
KOHL: So you are saying here that there is no support in the text, structure or history of the Constitution for that position. That's pretty flat out, pretty straight, pretty black and white.
ROBERTS: And in those cases, the other side argued that there was. And I don't think there's anything in either of those views that suggests you don't think that reasonable people can take different positions on those questions.
KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the '80s and into the '90's, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.
I assume, therefore, there are -- those are opinions that you are prepared to disavow?
ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?
ROBERTS: Well, at this point, of course, we're now 23, 24 years later. I would not -- I would have to address each of those positions anew. I wouldn't try to transport myself back 24 years and say: What did you think 24 years ago? And that would require me to look at and examine all those things.
And of course, it's not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it's one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record -- we've talked today about how important a record is in a particular case -- consider the law and the precedent.
But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years.
ROBERTS: I'd have to consider all those before reaching a conclusion in any of those particular areas.
KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.
Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.
Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?
ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.
And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.
KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.
These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.
I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.
ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.
The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there.
And so that's an area that I do not feel it appropriate for me to comment on.
KOHL: Sure. I appreciate that.

All Aboard!

As if the Minnesota DFL field weren't crowded enough, word now is that Mike Ciresi has entered the race. I couldn't say anything that First Ringer hasn't already. He and his cohorts are doing an excellent job covering the race, but they might want to make their lives easier by starting to cover only Democrats who aren't running. Only trouble is, they might have trouble finding them.

Roberts Lying Already

Yes, it was a great opening statement, especially with the baseball reference, but somehow I can't believe that Roberts is looking forward to the Committee's questions.

Thank you very much, Mr. Chairman and Senator Leahy and members of the committee. Let me begin by thanking Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I'm humbled by his confidence and if confirmed I will do everything I can to be worthy of the high trust he has placed in me.

Let me also thank you, Mr. Chairman and the members of the committee, for the many courtesies you have extended to me and my family over the past eight weeks. I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.

I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues, many of whom are here today.

Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year. And I was glad to hear from them that he was not a particularly good patient. He chafed at the limitations they tried to impose. His dedication to duty over the past year was an inspiration to me and I know to many others. I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around.
Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme Court. I always found it very moving to stand before the justices and say, "I speak for my country."

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system. Here was the United States, the most powerful entity in the world, aligned against my client. And yet all I had to do was convince the court that I was right on the law and the government was wrong and all of that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law any rights are meaningless.

President Ronald Reagan used to speak of the Soviet Constitution. And he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights.

We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

And I'll remember that it's my job to call balls and strikes and not pitch or bat.

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain from the days of our youth certain enduring images. For me those images are of the endless fields of Indiana stretching to the horizon, punctuated only by an isolated silo or a barn.

And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land. Growing up I never imagined that I would be here in this historic room nominated to be the chief justice. But now that I am here I recall those endless fields with their promise of infinite possibilities.

And that memory inspires in me a very profound commitment. If I am confirmed I will be vigilant to protect the independence and integrity of the Supreme Court. And I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

Thank you, Mr. Chairman. Thank you, members of the committee. I look forward to your questions.

Then and Now

Some things need no commentary:

Biden Then
You not only have a right to choose what you will answer and not answer, but in my view, you should not answer"
-- Hearings for Ruth Bader Ginsburg, 1993
http://judgeroberts.com/docs/videos/precedent.pdf

Biden Now
"For 70 years, there has been a consensus in our Supreme Court on these issues. And this consensus has been fully embraced by the American people.
But there are those who strongly disagree with this consensus – and they seek to unravel it. And, Judge, you have the unenviable position of being right in the middle of this fundamentally important debate.
And, quite frankly, we need to know on which side you stand. For whoever replaces Chief Justice Rehnquist, as well as Justice O’Connor, will play pivotal roles in this debate."
-- Opening Statement at the hearing of Judge John Roberts 9/12/05
http://biden.senate.gov/newsroom/details.cfm?id=245583

Durbin Then
"My record of opposition to abortion on demand has been public for eight years. ... I worked closely with Springfield Right-to-Life and served as a master of ceremonies at the annual banquet... I oppose abortion on demans. I support the Hatch Federalism Amendment which has been endorsed by the National COnference of Catholic Bishops."
-- Letter to Supporters, 1982
http://nrlc.org/Judicial/Durbin/Durbin1982Letter.pdf

Durbin Now
Concerns have also been raised about some of the things you wrote relative to the right of privacy.
We've gone through Griswold. We know what that Supreme Court decision meant in 1965, 40 years ago, when the court struck down the Connecticut statute which made it a crime for married couples to buy and use birth control. They said there was a fundamental right of privacy in that Constitution, though you can search every word of it, and not find the word privacy. But it's far from settled law in the minds of many.
Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning.
You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagree with their point of view with impeachment.
And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records.
Whether the court continues to recognize and protect America's right to privacy will have a profound impact on every American from birth to death.
In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that's what you believe.
http://www.nytimes.com/2005/09/12/politics/politicsspecial1/12text-roberts.html?pagewanted=47

Kennedy Drives off Another Bridge

Sen. Ted Kennedy, as I type, is once again embarassing himself, his state, and the United States Senate. Among other things, he said, "No Branch of government is so powerful that it can avoid accountability." That is precisely what the Supreme Court has done and what Sen. Kennedy has aided and abetted.

Sen. Kennedy would have Americans believe that Supreme Court decisions are one in the same with the Constitution. The Supreme Court can, in Kennedyland, amend the Constitution unilaterally and can be held accountable only by constitutional amendment. Kennedy ignores the role of Congress and the President in determining constitutionality even though both are sworn to defend the Constitution. Instead, Kennedy believes that the Supreme Court has been given the divine right to do whatever it pleases with the Constitution and with matters of national policy that appear nowhere in the Constitution. The checks and balances that are supposed to be at work in these hearings are ignored by the Court, and some Senators.

Although these hearings will surely be unfair and be peppered with subtle attacks on Judge Roberts, his faith, his family, and his philosophy, it is an opportunity for the country to see just how much power the Supreme Court has accumulated. Those who have not followed the Supreme Court closely will begin to wonder just how it got so much power that is supposed to be in the hands of those who are elected. This is a national civics lesson that will expose many liberals for what they are: election losers who realize judicial fiat remains the sole means to implement their extremist agenda.

What is that agenda for Sen. Kennedy's America? Those partially born cannot be protected, but terrorists must be. Condoms can be distributed in schools, but Bibles cannot. And states must recognize gay marriage but need not protect property rights.

The culture war is alive and well, and these hearings will show that the Constitution is on our side. By week's end, most of the American people will be as well.

DeWine Challengers Back Down

Last Thursday John Hritz, who recently announced that he would challenge Sen. Mike DeWine in a primary, announced that he is ending his bid, citing DeWine's opposition to indian casinos as a major reason. The Hritz campaign never really got started and the announcement is really an acknowledgement that he could not realistically have defeated DeWine. Now former Rep. Bob McEwen is the only possible primary challenger for DeWine. Likewise Rep. Tim Ryan sent an e-mail to supporters on Friday saying that he too would pass up the opportunity to run for the seat. Paul Hackett, for whom losing is winning, is the last man standing for the Democrats, but even he has not yet announced his candidacy.

Hritz's announcement sadly means that DeWine will likely - but not definitely - go unchallenged in the primary. His strong fundraising was surely a factor in the decisions of Hritz, Ryan, and Rep. Sherrod Brown. Now Hackett appears to be the only remaining stumbling block.

This election will be decided on turnout, and Sen. DeWine's transgressions, including his recent participation in the Gang of 14 agreement, suggest that he will have problems here. Many have used Hackett's performance in the recent special election in OH-2 as a barometer to measure the mood of the state. The most troublesome sign from the race, though, it not Hackett's performance but Republican turnout. Adding to the problems created by DeWine's trangressions are a corrupt Republican Governor who refuses to resign and a fellow "Republican" Senator who nearly cried on the floor of the Senate. GOP voters in Ohio will be less than motivated and many will be sufficiently turned off not to vote.

Fortunately for DeWine, though, it appears that Paul Hackett will be his only challenger. On everything but gun control, Hackett is a left-wing reactionary who is far too liberal for Ohio. Unlike in the special election, he will not be the sole "beneficiary" of liberal activists, but he will be forced to carry the baggage of the extremists who backed him in the special election. So far out is Hackett that he could be DeWine's greatest asset in the race, as keeping Hackett out of the Senate may give conservative voters the inspiration they need to turn out and send DeWine back to Washington. Hackett must strike a delicate balance between running hard left to motivate the base while not motivating conervatives at the same time. Chances are the left won't let him get away with this.

Here's hoping for a primary challenger, but unless he fails to hold the Democrats to their end of the G-14 agreement, he should be reelected if renominated and facing Hackett. For now, mark this down as "Lean Republican", but this can change depending on how Hackett handles the balancing act.

Notre Dame 17, Michigan 10

Last week the story of the game was Notre Dame's offensive line. This week, it was the defense that dictated the game. While Michigan outgained the Irish by almost 100 yards, the defense came up with the big plays when we needed them. Most notably, the Irish had two take-aways inside the one yard line. Defensive lineman also knocked down five passes at the line of scrimmage. This is now two consecutive weeks that the Irish have shut down quarterbacks who entered the game considered among the best in college football. Offensively, Darius Walker had his second consecutive 100 yard game while Brady Quinn completed 19 of 30 for 141 yards and 2 touchdowns. Notre Dame confirmed what many chose not to believe after the Pittsburgh massacre: this team is a serious threat to go to Pasadena and win the Rose Bowl.

Wake up the echoes!

Replacing the Weakest Linc

Every cycle has one election that defines a Party, perhaps even a movement. It is not always the election in the biggest state or the one with the best known candidates. Instead, the race stands out because of what is at stake. In this cycle, that race is in Rhode Island.

Today, the man who saved Cranston announced that he will challenge Sen. Lincoln Chafee in the Republican Primary. In 2000, Steve Laffey returned to the city where he grew up and found more problems than most thought could be fixed. The city was broken. Unions had taken over the city government and ensured that city employees were paid far more than the city could hope to afford. Bloated retirement programs and pay for hours not worked were just two of the many crippling financial problems that plagued the city.

Seeing this, Laffey decided to take action. He ran for Mayor as a reformer in a solidly Democrat city and won. When he became Mayor, Laffey started taking on one union after another. He went to bat for the taxpayers, fighting every union from the firefighters to crossing guards to reform bloated retirement programs and pay for hours that were not actually worked. With one success after another, Laffey restored the city to sound financial health, including making those same retirement plans solvent.

Now, Laffey wants to bring his brand of fiscal discipline to Washington. First among his plans, he wants to join Senator Tom Coburn and Rep. Ron Paul in eliminating the very pork barrel spending that Republicans said they would eliminate in 1994. He also wants to end corporate welfare and reform the tax code. Unlike many Republicans, one of his primary goals is to simplify the tax code, which in and of itself would help fuel the economy by reducing the outrageous money and time that goes into compliance thereto every year.

His opponent, on the other hand, has been nothing but a bane to Republicans, especially conservatives, since his election in 2000. Chafee was elected for one reason and one reason only in 2000: his name. The Chafees are one of the blue blooded five families that have dominated Rhode Island politics seemingly forever. Since joining the Senate, Chafee has frustrated conservatives at every opportunity. Last year, he often not to vote for the President, instead casting a protest vote for 41. He also managed to tie Sen. Voinovich with the worst voting record of any Republican according to Americans for Tax Reform. Most recently, Chafee betrayed the Party on judicial nominations, being the first Republican to say that he would not support a fair, up-or-down vote for every nominee, brokering an unacceptable deal with the other six dwarves, and finally applying the Boxer test on the nomination of Judge Owen. Near the end of last year, Chafee even flirted with the idea of changing parties. The defeat of Lincoln Chafee at the hands of Steve Laffey would send a clear message to Republicans throughout both the House and the Senate that it is not safe to stray from the Party's core principles.

Since nobody really likes Lincoln Chafee - nicknamed "the missing Linc" for his reputation as one of the Senate's dimmest bulbs - so many Republicans will make the case for Chafee by claiming that the Cranston Mayor is unelectable. Make no mistake that a Republican Majority of 51 seats including Lincoln Chafee is no Majority. One could make the argument that if Chafee were going to leave, he'd have done with with Sen. Jim Jeffords. This argument fails on two fronts. First, the Democrats did not need Lincoln Chafee. They gained the majority by luring Jeffords over with goodies for the change. Once in the Majority, they had no need to sacrifice leadership and pork for someone whose seat made little difference. Second, it was simple political calculus to see which party was on the rise for the long-term. As a Republican, Chafee is now able to fund pork barrel projects in Rhode Island. If being a Democrat would make that easier, Chafee would do it in a heartbeat.

More importantly, though, the argument that Laffey is not electable simply does not hold water. He was elected Mayor in a heavily Democrat city and remains popular. Since his election, Republican registration statewide has dropped, but the number of pachyderms in Cranston grew significantly. He has reached out to Democrats who are sick of business as usual, both in Rhode Island and in Washington, and can strike a cord with the significant population of pro-life Democrats who have long been ignored by both parties. Finally, Laffey will be able to make the case that Rhode Island needs a faithful member of the majority if it is to have any influence in Washington. With 55 Senate seats, Republicans could afford to ignore and lose a nominal member from Rhode Island, but Rhode Island could not. Though Laffey wants to cut waste from government, necessary government contracts go somewhere. If Rhode Island's congressional delegation consists of Patrick Kennedy, James Langevin, Jack Reed, and Sheldon Whitehouse, the state will have exactly zero influence in the appropriations process. Such an argument will go over well with an electorate that enjoys little to no influence as it is.

Rhode Island needs Steve Laffey in the United States Senate. The rest of America would be better off with him there too. If you give to only one campaign this cycle, make it Steve Laffey's.

And Then There Were Three

Today, State Rep. Beth Harwell (R-TN) announced that she is ending her Senate bid, saying that this was not the right race at the right time for her and her family. Harwell was not polling well - under 5% in most polls - but the departure is important because of the crowded primary field. Now that she has left, Bob Corker, 2002 Gubernatorial candidate Van Hilleary, and former Rep. Ed Bryant are left to fight it out. Harwell's supporters clearly took primarily from Bryant and Hilleary, so her departure bodes well for both of them. Corker, on the other hand, will have to work hard to convince Republicans to nominate someone who does not share their values. This is not an easy job in a state like Tennessee, where the argument that a conservative is unelectable is about as believable as a suggestion that Middle Tennessee State could run up the score against the Vols in Ole Rocky Top.

As Corker is not an option, conservatives must choose between Ed Bryant and Van Hilleary. While the two agree on most issues of import to the base, there are two major differences that make this choice clear. The first is that Ed Bryant has delivered for conservatives. During his time in the House, Bryant was a leader on pro-family issues, including pushing for pro-life legislation. In the Senate, he would add to his agenda the confirmation of conservative judges. Bryant's experience could even lead to a seat on the Senate Judiciary Committee, where the Republican wing of the Republican Party is sadly outnumbered. The fact that Bryant has received the endorsements of many of the strongest conservatives in the Senate - Dr. Tom Coburn, Sen. Jim DeMint, Sen. Sam Brownback, and Sen. John Ensign - speaks volumes for where he would be on the votes and issues that matter most.

In addition to being an outspoken conservative, Ed Bryant is also the strongest possible candidate. At a time when many conservatives are discouraged by the retiring Senator's flip-flop on stem-cell research and spineless "leadership" on the filibusters, Bryant will energize conservatives who would likely stay home if Corker were the nominee. With regard to Van Hilleary, he missed his chance to win statewide. The Governor's mansion in Tennessee should be safe Republican, but Hilleary managed not only to make the race interesting, but to actually lose, albeit to a strong candidate. While any Republican nominee would be favored against Rep. Harold Ford, Ed Bryant is the best man to show that Ford is out of step with Tennessee and at the same time motivate disgruntled conservatives.

A Missed Opportunity

John Roberts is a good nominee for Chief Justice and should be confirmed.

Having said that, the President missed a golden opportunity to define a new direction for the Supreme Court. If the President had nominated Janice Rogers Brown, he could have made a statement that the government has far exceeded its constitutional authority and that the era of big government is, in fact, over. He would also have clearly rejected Sandra Day O'Connor's jurisprudential gymnastics and seated another Justice whose record shows a clear understanding of the fact that the Constitution says what it says, not what Gallup's latest poll says it says.

Politically, the nomination of Janice Rogers Brown would have been the play of the decade. Anybody could see the irony of Ted Kennedy complaining about the civil rights record of the fist ever black woman to be nominated for Chief Justice of the United States. Senators Nelson, Stabenow, Landrieu, and others would have been forced to either back a solid conservative or institute a glass ceiling on black women in America. The confirmation of Janice Rogers Brown would have made clear once and for all that judicial philosophy is not justification for filibustering judicial nominees. The hipocracy of the Democrat Party, no matter what it did, would have been bared for all to see.

As I said, Roberts is a solid nominee and deserves to be confirmed. This assessment is not a criticism of John Roberts, whom I had endorsed for confirmation to replace Sandra Day O'Connor. I expect that Judge Roberts will serve well for decades to come. The documents released from his service in the administration of President Reagan suggest that he is a solid consrvative and point to a Scalia without the attitude approach. (I like the attitude.) I will be posting regularly throughout the rest of the process in support of the good Judge.

Notre Dame 42, Pittsburgh 21

While this is a political blog, I can't help but post on my beloved Fighting Irish. I had the good fortune to be able to come to Pittsburgh for the game. I'm a Jet fan, and I've never seen a defense so confused. It seemed for a while as if Lou Holtz had returned, minus the option. The Irish could have won by something closer to a Miami-Central Montana type score, but Charlie Weis did not see the need to run up the score. It's a long season, but the Notre Dame offensive line has the ability to dictate a game against any team in the country. This team has the talent to compete for a National Championship now.

RIP William Rehnquist

If you are a visitor of this blog, you know by know that Chief Justice William Rehnquist has died. I regret that I am on the road at the time of his death and am unable to post at length on his tenure. I wish him family well. He served faithfully and will be remembered fondly. My prayers are with Mr. Rehnquist and his family.

A Real Conservative for Utah

Sadly, Sen. Orrin Hatch has a reputation for being one of the most conservative members of the Senate. The sad fact, though, is that Hatch is a wolf in sheep's clothing. While it is true that Hatch does have a pretty conservative voting record, he has been a real disappointment on some of the most important issues and has even put forward one of the dumbest ideas in recent political memory - and that's saying a lot. Hatch actually suggested that computers storing illegally downloaded music should be destroyed by computer viruses. While I would agree with the Senator that this is a real problem, destroying a $1000+ investment for the evasion of a $2 purchase is beyond silly.

More importantly, Hatch has let conservatives down on two top issues. When President Clinton called Hatch to ask what he thought of a possible nomination of former New York Gov. Mario Cuomo, Hatch replied that a Cuomo confirmation would be contentious, but that Ruth Bader Ginsburg would sail through. Clinton took Hatch's advice and nominated an ACLU extremist who pays about as much attention to the Constitution as Ted Kennedy pays to his blood alcohol level. Upon the nomination, Republicans promplty followed Sen. Hatch's lead and rolled over, confirming Ginsburg 96-3. Since then, Ginsburg has bulldozed the Constitution to implement her left wing agenda at every opportunity. More recently, Hatch has become a cheerleader for unethical "scientific" research that requires the destruction of innocent human life. Someone who claims to be so ardently pro-life and then advocates such research either doesn't understand the pro-life position or is completely disingenous.

Now, Utahns have the opportunity to replace Hatch with a younger, saner, more consistent conservative. His name is Steve Urquhart and he is the Majority Whip in the Utah House of Representatives. It is testamony to his effectiveness as a legislator that he was elected to the position after just four years of service in the body. Urquhart is the real deal. At a time when Republicans have in many ways become carbon copies of Democrats, Urquhart is not afraid to speak out on the oft-forgotten hallmarks of conservatism, respect for life, smaller government, restrained courts, and national security - including illegal immigration. In particular, he is committed to reducing the control of the federal government over education. He will actively oppose the confused logic of liberals who have not yet realized the plain truth that federal control over education has hampered, rather than improved it, and that throwing federal dollars at the program is more important than giving states and localities control over their schools.

The election of Urquhart would not only serve to replace an old bull, don't rock the boat Republican with a true conservative, but it would have further reaching implications. For one thing, Sen. Hatch would likely be replaced on the Judiciary Committee by Ed Bryant, whom I can assure you would never recommend Ruth Bader Ginsburg for a seat on the Supreme Court. Along the same lines, Urquhart would be yet another vote in the conservative wing of the caucus. If you think that doesn't matter, consider this. Had Steve Urquhart been in the Senate at the beginning of this Congress instead of Orrin Hatch, Sen. Norm Coleman would be the Chair of the NRSC rather than Sen. Elizabeth Dole, who has proven herself totally inept in the position. It would also boost conservatives like Sen. Jon Kyl, Sen. Jim Talent, and this year's excellent freshman class in other important decisions that must be made within the caucus.

Now I know that the establishment types will make the case that Hatch is really a conservative and that it would be risky to have a candidate who would not be ensured of victory. In fact, Utah is as safe as it gets for Republicans. Conservatives won't lose, especially against liberal Pete Ashdown. Ashdown is a tech geek (how many candidates do you know who have eight issues that include "copyright", "patents & trademarks", and "technology"?) What's more, as of June 30, Ashdown had less than $2,000 on hand. The winner of the GOP primary will win the seat and there is no excuse for Utah not to replace Hatch with a true conservative.

Steve Urquhart belongs in the United States Senate. Orrin Hatch does not.