I wish I could be as tranquil as Richard. This is not the first time I’ve been struck by his cool Olympian detachment. Alas, I don’t have it. I’m concerned; I’m nervous; and I’m a bit worried. As I’ve said, if the issue were Roberts’s qualifications, indeed, even his candor, his sense of humor, or his mordant wit, he would be a shoo-in; but for an increasing number of Democrats and their fellow-travelers in the academy and the activist organizations, qualifications, intelligence, even humanity are of no moment if these qualities come coupled with a conservative philosophy. Yesterday Duke Law Professor Erwin Chemerinsky, a reliable barometer of left-wing political correctness, writing in the LA Times, called for the Democrats (oddly enough not the Republicans) to oppose Roberts, simply on the grounds that “he is likely to move the law far to the right in the years ahead.”

Indeed, for Chemerinsky – and, stay tuned Richard, I bet for Leahy, Kennedy, Biden, and other Democrats on the Senate Judiciary Committee – “Democrats need to oppose Roberts for the same reasons they fought against Clement F. Haynsworth, Jr. in 1969, Harold Carswell in 1970, Robert Bork in 1987 and Clarence Thomas in 1991.” These reasons, Chemerinsky says are Roberts’s “staunch conservatism,” and the theory that he would “join with the most conservative justices to change the law in a conservative direction.”

Among the astonishing howlers in Chemerinsky’s analysis are his claims that “Bork was not defeated because of a smear campaign,” and that Justice Anthony Kennedy has been “a solid conservative,” but let’s let those pass. What Chemerinsky makes marvelously clear is that he shares the of Richard’s colleague, Cass Sunstein, that there is such a thing as “judicial ideology,” and that conservatives have the wrong one and liberals the right one. To give Sunstein credit, all he claims is that there ought to be a “balance of judicial ideologies” on the bench, but strangely this need for “balance” is only invoked when the Court might become more conservative, and Chemerinsky more bluntly indicates that it is intolerable to put any Justice on the bench who might question the wisdom of Roe, of the purported constitutional right of privacy generally, or of allowing anything but a completely secular public square. (Cherminsky, it will be remembered appeared as a counsel for the plaintiffs in their unsuccessful attempt to remove the monolith with the Ten Commandments from the grounds of the Texas legislature.)

Richard and I care about the rule of law and interpreting the Constitution in a manner consistent with the understanding of those who ratified it, but Chemerinsky and people like him care about preserving the results (let’s be honest) wrongly obtained by a Court more committed to making policy than it was to interpreting the Constitution. Perhaps it is correct that there ought to be a right to privacy, that religion ought to be banished from public life, that racial classifications by the government in the service of liberal goals are laudable, and that there ought to be a right for same-sex couples to marry. These are matters that the American people should be able to determine, however, and not social problems to be solved by a crusading Court.

Chemerinsky has all but invited the same kind of circus that accompanied the Bork and Thomas hearings, the same kind of spurious accusations, and the same kind of wrongful slander that equates “conservatism” with oppression and a loss of freedoms. This misconstrues hundreds of years of history, and misunderstands the nature of republican government if not the nature of humankind, but it has a certain demagogic appeal, as Senator Kennedy and others showed us in the Bork and Thomas hearings. This is well understood by those who now oppose Roberts’s confirmation. They have at least had the decency to reveal the arguments they intend to use to defeat Roberts. Like Richard, I think they’ll fail, but I think it may be close, and this is one of those times when evil could triumph if good men and women do nothing. I can’t rest easy, Richard, my friend. Neither should you.