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.