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.