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.