Now that the Senate hearings on Roberts have concluded, Steve and I should take stock both of his nomination and of the Senate that now must vote on his confirmation. On the former, I see nothing in these recent events that has altered the basic judgment that Roberts is a serious and able man who will take his job seriously, and discharge it ably. In saying this, I do not mean to imply that he will agree with me more often than not. As an outsider to our dominant constitutional tradition, I regard that, frankly, as too much to hope for�and wholly improper to ask for from any nominee. But so long as the Senate recognizes that the nomination belongs to the President, and not to itself, then the only grounds to vote no is that Bush did not choose a liberal democrat to fill the seat of William Rehnquist. Sensible senators of both parties will vote to confirm.
The state of the Congress, as voiced through the Senate, is much more difficult to fathom. Freud�or, at least I think it was Freud, but who remembers for sure?�spoke of love/hate relationships and that is what the Senate has for itself. On the one hand, it is easy for Democrats and Republicans alike to wax elegant about how it is critical that the Supreme Court not place any limits on its power to legislate, wisely of course, under the Commerce Clause. The argument here has nothing to do with constitutional text, history, structure, purpose or precedent. It is a simple assertion of raw, unenumerated power. The justification for that power is that Congress enjoyed it in the years between Wickard v. Filburn in 1942 and United States v. Lopez in 1995, which clipped the Wickard wings ever so slightly.
Unfortunately, if Senator Arlen Specter is any guide, the case for the return to that 53-year regime rests on one giant emotional pout: members of the Senate think that you are showing us disrespect when you assume that we are not competent to solve the nation�s problems. It was as sorry a display of intellectual infantilism as one is likely to see in public life. Not so much as a single effort was made to offer a principled basis for reaching that conclusion.
So that�s the side of self-love. But what of self-hate? That is captured in the idea of the �right to privacy,� which, after the Bork nomination, has become a litmus test for constitutional respectability. But now the jurisprudence does a constitutional U-turn. Privacy is so critical to ordinary individuals that Congress could never be trusted to regulate or protect it. At this point we have to tell a different story about Congress from the one just advanced with the Commerce Clause. Now Congress is filled with boorish and insensitive individuals who could never be trusted to defend the fundamental rights of our people. The Court must step in as the guardian of all rights, at least of those which the Senate thinks so fundamental that they have to be kept off limits to Congressional action.
Yet how do we tell which these rights are if we do not read New York Times editorials? Once again we are left at sea, for there is little effort to bring text, structure, history or purpose to this analysis. We are of course told that the right was first enunciated in the famous Warren and Brandeis article about the right to privacy, which is somewhat more genteel than the modern right of privacy. But the irony is still deeper. Warren and Brandeis were not in the business of doing constitutional law. They sought to cobble together a collection of older common law precedents to make sure that the yellow journalists of his day could not cover in lurid detail the wedding of Mr. Warren�s daughter. It is one ironic footnote to this history that this version of privacy has long been swallowed by the general �newsworthiness privilege,� grounded in the First Amendment rights of the very newspapers who champion the privacy right in other contexts.
That Warren and Brandeis championed a constitutional dead end should give caution to anyone who asserts a general right of (or to) privacy, without taking into account the scope of the basic interest or the countervailing interests on the other side. But in the context of Senate hearings, lip service is what counts. The hard questions never get discussed because what is sought is not an understanding of the Constitution but to fealty in advance to one view of how the overall debate should come to an end. This great experiment in public education has taught us very little about Judge Roberts. Alas, it has taught us all too much about the intellectual blinders that govern the Senate Judiciary Committee in the course of its deliberations.